Kashyap Patel Had Better Not Rely on the Bill Duhnke Precedent

Contrary to what a lot of people understand of the case, Jeffrey Sterling was not the CIA’s first suspect for the Merlin leaks to James Risen. Senate Intelligence Committee Staff Director Bill Duhnke was. As former CIA press person Bill Harlow testified, he told the FBI that James Risen had close ties to Duhnke when he first talked to them about Risen’s story.

Q. Okay. And you also told them that someone they should talk to about something like this would be Bill Duhnke, a person named Bill Duhnke, correct, up at the — that worked at the U.S. Senate?

BY MR. MAC MAHON: Q. Now, Mr. Harlow, in 2003, you told the FBI that you thought that Mr. Risen might reach out to the Staff Director of the Senate Select Intelligence Committee on Intelligence for confirmation, that Mr. Risen would, correct?


A. My recollection is what the FBI asked me is who are the kind of people that Risen might talk to on a story like this, and I told them that he had regular contact with the Congressional Oversight Committees, including the Senate Intelligence Committee, and so the kind of places he might go to ask about the story would be the Senate Oversight committees. That’s my recollection of it. You know, it’s a dozen years ago but —

Q. And one of the names you gave them was Bill Duhnke, right?

A. Right.

As FBI Agent Hunt explained, however, she was hampered from investigating whether Duhnke (who knew aspects about Merlin that Sterling did not which showed up in Risen’s reporting) was a source for Risen because Senator Pat Roberts refused to cooperate with the FBI, even after then FBI Director Robert Mueller requested himself.

Q. And do you also remember writing in 2006 that the FBI director contacted the SSCI Chairman and Senator Pat Roberts, right?

A. Yes.

Q. And that Senator Roberts told Director Mueller that he wasn’t going to cooperate with the FBI at all in this investigation, correct?

A. Yes.

Q. And that never changed, did it?

A. It did change.

Q. You then got some cooperation from SSCI, correct?

A. I did. Q. You never got an interview with Mr. Duhnke, right?

A. I did not interview Mr. Duhnke.

Thus it happened that Speech and Debate prevented the FBI from investigating whether a key Intelligence Committee staffer played a role in a leak the government claimed was one of the worst ever.

I thought of that precedent when I read this passage in the NYT’s latest story on DOJ’s belated realization that Devin Nunes was using purported oversight requests to discover details that might help Trump delegitimize the Mueller investigation.

In another meeting, Mr. Rosenstein felt he was outright misled by Mr. Nunes’s staff. Mr. Rosenstein wanted to know whether Kashyap Patel, an investigator working for Mr. Nunes who was the primary author of the disputed memo, had traveled to London the previous summer to interview a former British spy who had compiled a salacious dossier about Mr. Trump, according to a former federal law enforcement official familiar with the interaction.

Mr. Patel was not forthcoming during the contentious meeting, the official said, and the conversation helped solidify Mr. Rosenstein’s belief that Mr. Nunes and other allies in Congress were not operating in good faith.

And these passages in an earlier NYT piece on Patel.

Over the summer, Mr. Nunes dispatched Mr. Patel and another member of the committee’s Republican staff to London, where they showed up unannounced at the offices of Mr. Steele, a former British intelligence official.

Told Mr. Steele was not there, Mr. Patel and Douglas E. Presley, a professional staff member, managed to track him down at the offices of his lawyers. There, they said they were seeking only to establish contact with Mr. Steele, but were rebuffed and left without meeting him, according to two people with knowledge of the encounter.

A senior official for the Republican majority on the Intelligence Committee, who spoke on the condition of anonymity because he was not authorized to speak about the matter, said the purpose of the visit had been to make contact with Mr. Steele’s lawyers, not Mr. Steele. Still, the visit was highly unusual and appeared to violate protocol, because they were trying to meet with Mr. Steele outside official channels.

Ordinarily, such a visit would be coordinated through lawyers, conducted with knowledge of the House Democrats, who were not informed and the American Embassy.

Given Rosenstein’s concerns that Patel was lying, I find it particularly interesting that he didn’t inform the American Embassy when he was there. It’s as if he was looking for a back channel!

As NYCSouthpaw noted, Patel has been hanging around the White House since he’s started playing this role.

In the months since, Mr. Patel has apparently forged connections at the White House. In November, he posted a series of photos to Facebook of him and several friends wearing matching shirts at the White House bowling alley. “The Dons hit the lanes at 1600 Pennsylvania,” Mr. Patel wrote under the photos.

This would suggest that the Nunes designee who has had firsthand access to all this intelligence, has also gotten really comfortable with the White House, leaving the possibility that he has shared the information with those in charge of delegitimize the investigation.

I’ve long wondered why Nunes has refused to read the information he has fought so hard to get access to. But by giving Patel that access without reading the materials himself, Nunes ensures that someone with easy access to the White House sees the materials, without jeopardizing the power to refuse any cooperation with Mueller.

Nunes, like Roberts did in 2006, could simply refuse to cooperate under speech and debate.

And it might well work!

There is, however one problem with that. You see, one of the ways (admittedly one of the less offensive ways) the President has interfered in the operations of DOJ is by demanding that the department ratchet up the leak investigations. And at a time last summer where Trump was threatening to fire Sessions so he could hire someone who could interfere with the Mueller investigation, Sessions and Dan Coats rolled out a new war on leaks, speaking of new permissiveness for prosecutors. Both Sessions…

To prevent these leaks, every agency and Congress has to do better.

We are taking a stand. This culture of leaking must stop.


Finally, here is what I want to tell every American today: This nation must end the culture of leaks. We will investigate and seek to bring criminals to justice. We will not allow rogue anonymous sources with security clearances to sell out our country any longer.

These cases are never easy. But cases will be made, and leakers will be held accountable.

All of us in government and in every agency and in Congress must do better.

And Coats invoked Congress as a source of leaks specifically.

I would like to point out, however, that these national security breaches do not just originate in the Intelligence Community. They come from a wide range of sources within government, including the Executive Branch and including the Congress.

At the time, those mentions were deemed a warning that (in addition to changing the rules allowing them to pursue journalists), DOJ would also start pursuing Congress and its staffers more aggressively.

So while the available evidence suggests that Patel may be part of Nunes’ effort to funnel information to the White House, and while past history has shown that Nunes’ counterparts have been able to protect intelligence committee leakers, perhaps the witch hunt demanded by Trump will change that.

The Mark Zaid Materials from the Jeffrey Sterling Trial

Because he just formed a new whistleblower group with John Napier Tye, there as been renewed interest in allegations an FBI Agent made during the Jeffrey Sterling case about attorney Mark Zaid. But there was actually a second detail regarding Zaid released just after the trial that has not been publicly reported: Zaid was interviewed by the FBI, twice, and was even interviewed before Sterling himself was.

I asked Zaid whether he was obligated to do the FBI interviews on Twitter but got no response. I think it’s possible FBI asked to interview him as much because the Senate Intelligence Committee was refusing to cooperate in the investigation as anything else; at the time, FBI considered SSCI staffer Bill Duhnke a more likely suspect than Sterling (and it’s not clear they ever ruled him out).

Let me be clear: I’m posting these materials to make the full context of them accessible. Zaid has not explained these, but he has promised repeatedly there is an explanation for them. As noted, there may be a perfectly logical explanation that has as much to do with Senate privileges as it does with attorney-client.

In any case, these materials are just what was directly related to the criminal case. The criminal investigation actually interacted with events in Sterling’s EEO lawsuit — which is what Zaid was primarily representing Sterling on in 2003 — in even more interesting ways I may return to.

Special Agent Ashley Hunt’s accusations

The following accusation came in prosecutor Eric Olshan’s redirect of Ashley Hunt, the FBI witness in the trial, after Sterling’s lawyers had demonstrated that the investigation was narrowly focused on Sterling without questioning some of the other possible witnesses in the case.

Q. When you initiated the investigation, I believe you testified it was in April of 2003?

A. That’s correct.

Q. At the time when you initiated your investigation concerning unauthorized disclosure of classified information to James Risen, did you learn any information regarding Mark Zaid and Mr. Krieger that, that directed your investigation?

A. I did.

MR. MAC MAHON: Your Honor, objection. That door was not opened as to Mr. Sterling’s prior lawyers.

MR. OLSHAN: Your Honor, this is about why —

THE COURT: Again, the scope of the investigation, what was done and not done, was clearly part of the cross. I’m going to allow it, excuse me, on redirect; and if there needs to be recross on that, you’ll be allowed to. Go ahead.

MR. MAC MAHON: Thank you, Your Honor.

BY MR. OLSHAN: Q. What did you learn at the outset of your investigation about information from Mr. Krieger and Zaid that helped you direct your investigation and focus it?

A. When I opened my investigation on April 8, 2003, my investigation was based on a report I received from the CIA dated April 7, 2003. In that report, the CIA provided information about the fact —

MR. MAC MAHON: Your Honor, that’s hearsay.


MR. OLSHAN: Your Honor, this is not for the truth. It’s why she took the actions.

THE COURT: It explains why she is acting, takes the investigative tacks that she does, so I’m going to overrule the objection. It’s not hearsay.

BY MR. OLSHAN: Q. You may continue, Special Agent Hunt.

A. The CIA advised that on February 24, 2003, it was contacted by Mark Zaid and Roy Krieger. They told the CIA on February 24 that a client of theirs had contacted them on February 21, 2003, and that that client, that unnamed client at the time voiced his concerns about an operation that was nuclear in nature, and he threatened to go to the media.

Q. Did you later learn who that client was from Mr. Zaid and Mr. Krieger in the course of your investigation?

A. I did.

Q. Did those facts help you focus the direction of your investigation?

A. They did.

Q. And who did you learn was the client of Mr. Krieger and Mr. Zaid?

A. Jeffrey Sterling.

On recross, Sterling lawyer Edward McMahon worked to undercut the revelation by having Hunt describe how, when she wrote up a memo on the case on April 12, 2003, she believed it unlikely he was the leaker.

Q. Okay. And you had written about Mr. Sterling in 2003, hadn’t you, the same time you’re telling in answer to Mr. Olshan’s questions that you were hearing some hearsay about Mr. Sterling’s lawyers?

A. I’m sorry, what’s the question?

Q. You said you had heard some hearsay that Mr. Sterling’s lawyers were talking about him at the CIA, correct?

A. What I said is that his attorneys went to the CIA on February 24. At that time, they did not name Jeffrey Sterling.

Q. All right. But on April 12 of 2003, you wrote a memo about Mr. Sterling, and you said that it was unlikely that it was Mr. Sterling who was the leak, correct?

A. If I wrote that at that time, then that was based on the information I had at that time.

Q. Right. You said that it’s unlikely that someone who has already attempted to settle an EEO lawsuit for a few hundred thousand dollars would choose to attack and enrage the organization from which he seeks but has not yet received a settlement. That’s your writing, isn’t it?

A. I don’t know. You haven’t shown me the document.

Q. And you also in the same document dismiss your concerns about Mr. Zaid and Krieger, correct? You don’t remember that?

A. I don’t know. It was 12 years ago.

Q. And in the last 12 years, you still haven’t come up with any proof that Mr. Sterling ever talked to Mr. Risen about Classified Program No. 1 or Merlin, right?

A. Correct.

Thus far, the timeline looks like this:

February 21: Alleged contact between Sterling and Zaid (not stated whether this is phone call or email, which would show up in call records available with a relevance standard)

February 24: Alleged call from Zaid and his partner warning that one of their clients would leak

April 7: CIA referral includes their claim about Zaid call

April 8: Hunt opens investigation

April 12: Hunt writes memo dismissing likelihood that Sterling is leaker

The FBI Interview Dates

Now consider the dates of the 2003 FBI 302s included in these two CIPA letters (the names with the first initial last name are CIA witnesses; it’s unclear whether that’s true of the entirely redacted names).

April 12: Redacted name

April 12: Robert J. E

April 12: Bob S

April 13: Redacted name

April 13: Redacted name

April 14: Bill H (almost certainly Bill Harlow, CIA’s then spox)

April 18: Mark Zaid (three page 302)

April 28: Bill H (again, almost certain Harlow)

May 7: Redacted name

May 9: Redacted name

June 19: Sterling

June 26: Bob S (Sterling’s supervisor)

July 18: Redacted name

July 21: Thomas H

August 1: David C

August 13: Redacted name

August 14: Diane F

That is, the memo where Hunt said she didn’t think Sterling was the leaker was written either before she had done any interviews, or after she had done just the first CIA ones (including with Sterling’s boss, who definitely blamed Sterling). The first round of interviews appear to be primarily or all CIA witnesses.

And the next interview — at least among those that Sterling’s defense thought they might use at trial — was Zaid. Zaid’s interview, in fact, was months before Sterling’s. The second letter shows a second Zaid interview on September 2, 2010.

To emphasize: Sterling’s lawyers requested these FBI interviews be available for trial, not the prosecution. It’s unclear whether they did that because the interviews would have helped them, or because (as was the case with virtually all the other witnesses) they thought they might need to draw on those interviews for cross-examination.

But unless there’s some wildly egregious error in these files, Mark Zaid did two interviews with the FBI before he — obligated by subpoena, he said repeatedly — testified before the grand jury on September 22, 2010.

The Use of Photographs as Propaganda


Go read JimWhite’s diary about the military’s complaints that the Taliban are using a video of a captured American soldier as propaganda.

They’re exploiting the soldier for their own propaganda.


The Taliban are using it as a propaganda tool.

Then read this passage from George Tenet’s book, co-written with Bill Harlow:

By the next morning, Sunday, March 2, US media outlets were carrying news of the [KSM] capture as well. Some of the stories described the worldly KSM as an al-Qa’ida James Bond. To illustrate the point, they showed photos of him with a full beard wearing what were supposedly his traditional robes. It didn’t take long for Marty to phone me and relay his disgust at some of the coverage.


“Boss,” he said, “this ain’t right. The media are making this bum look like a hero. That ain’t right. You should see the way this bird looked when we took him down. I want to show the world what terrorists look like!”

Turns out, our officers on the scene in Rawalpindi had snapped and sent back some digital photos of KSM just after his capture, so I suggested that Marty call the Agency spokesman, Bill Harlow, and work something out. Within an hour, Harlow was in CTC looking over a selection of photos that made KSM look nothing like James Bond. Together they picked out the most evocative photo. Then Harlow, armed with a digital copy, called up a reporter at the Associated Press and told him, “I’m about to make your day.” Asking only that the AP not reveal where they got the picture, he released the image of a stunned, disheveled, scroungy KSM wearing a ratty T-shirt. The photo became one of the iconic images of the war on terrorism. If we could have copyrighted it, we might have funded CTC for a year on the profits. Foreign intelligence services later told us that the single best thing we ever did was release that photo. It sent a message more eloquently than ten thousand words ever could that the life of a terrorist on the run is anything but glamorous.

I hope to hell that soldier comes home safely and I’m sorry the Taliban used his image for propaganda purposes.

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