Posts

To Avenge Mr. Merlin, CIA Exposed Mrs. Merlin

/6 Comments/in /by
Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

The government engaged in a great deal of security theater during the Jeffrey Sterling trial, most notably by having some CIA witnesses — including ones whose identities weren’t, technically, secret — testify behind a big office divider so the general public couldn’t see the witness.

But along the way, the government revealed a great number of secrets, including a number of secrets about how its counterproliferation programs work.

Perhaps most ironically, in a trial aiming to convict Jeffrey Sterling for revealing that the Russian scientist referred to as Merlin during the trial was a CIA asset, the government revealed that Merlin’s wife was also an asset.

That possibility was first suggested in the testimony of the first witness, Stephen B, who described originally recruiting Mrs. Merlin (presumably also for information on Russia’s nuclear program), not Merlin himself. Merlin’s wife suggested CIA recruit Merlin.

But the exhibits make it even more clear that CIA continued to have a relationship with Mrs. Merlin as well. For example, the first of two cables describing CIA informing the Merlins the engineer appeared in James Risen’s book describes them as the “Merlin assets,” plural.

Screen Shot 2015-01-25 at 11.44.24 AM

That January 6, 2006 cable goes on to reveal that Mrs. Merlin had been facilitating the targeting of a Russian official who was due to travel to the US.

Screen Shot 2015-01-25 at 11.48.28 AM

In addition, a stipulation regarding how much the CIA paid out over the years described it as how much “CIA paid Merlin and his wife.” [my emphasis] Indeed, the payments continued after CIA purportedly had to discontinue using Merlin on operations when Risen threatened to publish a New York Times story in 2003, and continued even after Merlin appeared in Risen’s book in 2006, even increasing in 2007.

Screen Shot 2015-01-25 at 11.52.08 AM

Altogether, the CIA paid the Merlins roughly $413,223.67 over the 7 years after James Risen supposedly ruined Merlin’s usefulness as an asset.

It’s possible that some of these amounts were just meant to keep the Merlins silent. Yet it’s also clear that in 2006, Mrs. Merlin was actively providing information on Russian targets to the CIA.

None of these details — including a listing of how much nuclear engineers might expect to be paid by the CIA for a thorough debriefing then participation in a deception operation — were made public by Risen’s book.

But in the government’s zeal to punish Jeffrey Sterling because it believes he revealed Merlin to the world, the government has, in turn, revealed Mrs. Merlin.

The Sterling Closing Arguments: Who Is the Hero, Who Is the Storyteller?

/12 Comments/in /by
Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

“Jeffrey Sterling was the hero of Risen’s story,” prosecutor Eric Olshan finished his closing argument in the Jeffrey Sterling trial. “Don’t let him be the hero of this one.”

“They are patriots,” prosecutor Jim Trump ended his remarks, speaking of the many CIA officers the jury had heard from. “They do their work without accolades.” He then compared Sterling with those patriots. “Sterling is not a patriot,” he described after accusing Sterling of betraying the CIA and his colleagues. “He is the defendant, he is guilty.”

Defense attorney Barry Pollack spoke in different terms — of the government’s insurmountable burden to present actual evidence that Jeffrey Sterling leaked national defense information to James Risen. Pollack warned of what a tragedy it would have been had the jury used the circumstantial evidence, presented by the government, that the word “Merlin” appeared on a computer Sterling used for 2 years to convict Sterling, when it turns out the word probably got there from its prior owner’s review of a piece of software called Merlin. “It would have been a tragedy” had the jury convicted Sterling based on that evidence, Pollack ended his presentation.

But along the way Pollack reminded whose story this is: James Risen’s, not Jeffrey Sterling’s, and the choices about how he presented Sterling, Bob S, and Merlin were made by him. The government, which pursued Risen’s testimony for 9 years, today presented the reporter as a mere vehicle for Jeffrey Sterling, a non-entity. Of course, no mention was made of Risen’s clear argument, in both the chapter (which the jurors will read) and the rest of the book (which jurors cannot read) that there were real reasons to be worried about CIA’s actions with respect to WMDs in both 2003 and still in 2006.

The government did a lot of good for their case in their closing arguments. Prior to today, their case was a mess, with their last witness, FBI Agent Ashley Hunt, admitting she had not even tried to gather evidence from some of the other possible sources for Risen, and had not succeeded for others. Olshan’s focus on citations from Sterling’s performance review was particularly compelling that Sterling had a role — albeit one that might have involved sharing entirely unclassified information — in Risen’s story.

Pollack did his best work pointing out that the evidence in CIA cables — particularly the timeline of meetings just before Merlin went to Vienna — suggested Merlin’s explanation for how a key letter appeared in Risen’s book did not make any sense. “There’s one problem [with Merlin’s story],” Pollack claimed. “It’s not true.” CIA cables showed that Merlin had not met alone with Sterling at the time he claimed he had, so it was impossible for Sterling to have gotten a copy of the letter in the way Merlin claimed he had. Pollack also took the government’s own narrative of Sterling’s calls with Risen, and showed where they had omitted the events in Sterling’s long-running equal opportunity and publication fights with the CIA, a perfectly innocent explanation for his calls with Risen.

There was almost no room in either story for challenging these narratives of heroism and betrayal. After all, if nuclear weapons are as serious as Olshan reminded the jury they are, then perhaps the concern about giving nuclear blueprints to Iran was itself a grave concern. Perhaps whoever leaked this story to James Risen as the country went to war in the name of WMDs that didn’t exist was him- or herself a hero. That was not submitted to the jury as a possibility.

Ultimately, though, it will come down to the story the jurors themselves craft to explain how a chapter that adopts a strong narrative voice — Risen’s voice — came to be, and whether they believe the government has presented enough evidence to prove Sterling was one of the many characters in the story of how investigative reporter James Risen publicized what the government claims was one of its closest held secrets.

Before this close, I would have guessed that there was no way the jury would find Sterling guilty; the government simply had not presented any evidence. It’s not clear their evidence is any more sound now, but they have told a story that may well resonate with the jury.

Government Tries to Convict Jeffrey Sterling for Retroactively Classified Documents about Rotary Phones

/12 Comments/in /by
Watercolor of Sterling

Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

After a week of ominous language about the dangers of leaking classified documents, the 14 jurors in the Jeffrey Sterling trial Tuesday got their first look at purportedly classified documents.

Martha Lutz, the CIA’s Chief of Litigation Support and the bane of anyone who has FOIAed the CIA in the last decade, was on the stand, a tiny woman with a beehive hairdo and a remarkably robust voice. After having Lutz lay out the Executive Orders that have governed classified information in the last two decades and what various designations mean, the government introduced four documents into evidence — three under the silent witness rule — and showed them to Lutz.

“When originally classified were these documents properly classified as secret,” the prosecution asked of the three documents.

“They weren’t,” Lutz responded. [update: the transcript reflects Lutz saying these were properly classified secret]

“But they are now properly classified secret?”

“Yes,” Lutz answered.

A court officer handed out a packet of these same documents with bright red SECRET markings on the front to each juror (the government had tried to include such a warning on the binders of other exhibits, but the defense pointed out that nothing in them was actually classified at all). Judge Leonie Brinkema, apparently responding to the confused look on jurors’ faces, explained these were still-classified documents intended for their eyes only. “You’ll get the context,” Judge Brinkema added. “The content is not really anything you have to worry about.” The government then explained these documents were seized from Jeffrey Sterling’s house in Missouri in 2006. Then the court officer collected the documents back up again, having introduced the jurors to the exclusive world of CIA’s secrets for just a few moments.

On cross, however, the defense explained a bit about what these documents were. Edward MacMahon made it clear the date on the documents was February 1987 — a point which Lutz apparently missed. MacMahon then revealed that the documents explained how to use rotary phones when a CIA officer is out of the office. I believe the prosecution objected — so jurors can’t use MacMahon’s description in their consideration of how badly these documents implicate Sterling — but perhaps the improper description will help cue the jurors’ own understanding about what the documents they had glimpsed were really about, making it clear to them they’re being asked to convict a man because he possessed documents about using a rotary phone that the CIA retroactively decided were SECRET.

Along with these awesome secrets about rotary phone usage, the prosecution noted that Sterling also had a 1993 performance evaluation at his home in Missouri. Under cross, MacMahon got Lutz to correct her testimony that this PAR was not from when Sterling was a Case Officer — as she had originally explained — but from when he was a trainee. But Lutz insisted that the document would still have been secret if not redacted anyway because it would reveal the kind of trainees the CIA looks for.

You might be wondering how the government plans to use retroactively classified documents about rotary phones to convict Jeffrey Sterling for leaking details about an operation dealing nuclear blueprints to James Risen. Luckily, the government explained all that back in September 2011.

Remarkably, they argue that these documents seized from Sterling’s house in Missouri in 2006 are proof that he possessed classified documents in his house in Herndon, VA in 2003.

Although the uncharged classified documents were seized from the defendant’s residence in Missouri on October 5, 2006, the defendant had to have moved those documents from his residence in Herndon, Virginia to his residence in Missouri in August 2003. The defendant had no access to classified information while residing in Missouri, and no longer had access to any classified documents when the CIA terminated him on January 31, 2002.

Along with the FBI’s Agent’s hairdresser’s testimony, the government is offering these documents as “proof” that they’ve properly charged Sterling in Virginia and not, say, Missouri, where a judge is less likely to permit the government to wave around documents on rotary phones as if they’re an important secret.

The government also introduced these documents about rotary phone usage because — they readily admitted in that September 2011 motion —  that they were forced to do such things because they only have a circumstantial case showing that Sterling had a letter that got leaked to James Risen absent the journalist’s testimony (they submitted that motion at a time when Brinkema had limited Risen’s testimony).

The evidence of the defendant’s possession of the seized classified documents is necessary because the letter charged in Counts Three and Five no longer exists. Absent Risen’s testimony, the evidence of the defendant’s possession of the letter charged in Counts Three and Five is solely circumstantial, based largely on inferences drawn from the defendant’s involvement in Classified Program No. 1, his access to certain CIA cables containing drafts of the letter, and the small number of individuals who would have had access to a paper copy of the letter.

In other words, they’ve submitted these documents Sterling obviously got in the very early days of his CIA career to “prove” that he also had snuck a letter on the Merlin program out of the CIA in 2000 (after which point he lost access to the information) and sat on it until 2003, when he allegedly shared it with Risen.

That the government is doing so makes it all the more ridiculous that a number of CIA’s witnesses — including up to four who were themselves cleared into the Merlin program — were able to testify without answering questions about the classified documents they improperly brought home. Given that the CIA actually learned of those documents in real time, it’s likely they were a lot more interesting than instructions on how to dial a rotary phone. And following the government’s habit of making fevered inferences, their improper treatment of classified information should make them more likely candidates to be James Risen’s source than Jeffrey Sterling.

But instead, the government is arguing, in all seriousness, that Jeffrey Sterling should go to prison because of three documents on dialing a rotary phone dating to 1987.

Government Pioneers Hairdresser Venue-Shopping in Jeffrey Sterling Case

/15 Comments/in /by

CIA

Here’s my latest on the Jeffrey Sterling trial from ExposeFacts.org:

Coming back into the courtroom after a break in the Jeffrey Sterling trial this afternoon, I heard an odd conversation. Apparently the government had unsuccessfully tried to get the defense to stipulate that the hairdresser for the FBI officer who had investigated this case had read James Risen’s book, State of War, in the Eastern judicial district of Virginia, where the court is located.

“There is no hairdresser privilege,” the judge presiding over the case, Leonie Brinkema, ruled.

So after a surprisingly weak presentation of computer forensic evidence, the government then called the investigating FBI officer’s hairdresser, who I will refer to as Julia P (because why shouldn’t she get the same privacy protections all the CIA’s witnesses got?). She seemed unprepared for court testimony, dressed casually. But she was a welcome breath of fresh air from all the stern witnesses preaching national security we’ve seen in the trial so far.

“Hi!” she said in a high voice as she took the stand. She explained she’d been a hairdresser for 35 years (she looked far too young for that to be the case). Julia P then confirmed that she had read State of War.

“Yessir, every chapter.”

She went on to confirm that she had read the book in Alexandria, VA shortly after it came out and that she does not have a security clearance.

The government, you see, is trying to establish they have charged Jeffrey Sterling in the proper venue. If anything has so far been presented that ties the alleged crimes to the Eastern District of Virginia, it’s not apparently clear what that is. It may be that the government had intended to use Risen’s testimony to establish venue in CIA’s home judicial district, but even there, he lives in Maryland and his office in is District of Columbia, as the government had just stipulated.

So they called the investigative Special Agent’s hairdresser.

And citing no precedent for this means to establish venue for an espionage case, the prosecution got Julia P to testify she had read a nationally released book that disclosed classified information in the same city where the trial is taking place.

Judge Brinkema then interjected, “how did you obtain the book?” It might have been either Borders or Barnes & Noble, Julia P explained. When pressed, she said it was probably in Alexandria or Arlington.

But it might have been in Bowie, Maryland, because her boyfriend lives there.

As Julia P pointed out, there are Barnes & Nobles all over.

On cross-examination, the defense asked her to clarify this, whether she knew where she bought the book. “It was probably Virginia, but it might have been Bowie,” she repeated. “You don’t remember whether you bought the book in Virginia or Maryland?” the defense asked again to be sure.

When she was dismissed, Julia P responded with the same refreshing voice, “Thank you!”

Note, of a fairly large jury pool, not a single potential juror had read Risen’s book. But to Julia P’s great credit, she has.

I’m anticipating that the venue jury instructions are going to be mighty interesting.

The Jeffrey Sterling Trial: Merlin Meets Curveball

/6 Comments/in , /by

Here’s my latest post  from the Jeffrey Sterling trial at ExposeFacts.org, I describe how a top CIA officer — one who works in counterproliferation — used “curveball unironically,” even while presenting information that raised new concerns for me about Operation Merlin.

English nuclear blueprints“Very often you get a curveball thrown at you.”

When Bob S, a longtime CIA operations manager working on Weapons of Mass Destruction described the ambiguity common on CIA operations as getting a “curveball” thrown at you in Wednesday’s testimony at the Jeffrey Sterling trial, he surely didn’t mean to reference the Iraqi fabricator who, under the pseudonym “Curveball,” lied about Saddam Hussein having mobile bioweapons labs, thereby playing a key role in CIA’s dodgy case to support the Iraq War.

Nevertheless, several people in the courtroom laughed that a senior CIA official working on WMD could ever use the term, Curveball, and not realize he was, at the same time, invoking one of CIA’s most embarrassing failures, one directly tied to Bob S’ work.

And while Bob S’ testimony made no mention of Iraq — at least not explicitly — his testimony did, at times, seem to confirm defense lawyer Edward MacMahon’s opening argument quip that the CIA was using this criminal case “to get its reputation back.” The better part of Wednesday’s testimony involved Bob S walking the court through one set of cables relating to the Merlin operation (though surely not all the ones pertaining to Zach W, the witness who lost his confidence when asked about Risen’s book on Tuesday), showing how slow and, the implication is, careful the operation was. At one point, as part of a very extended review of James Risen’s chapter on Operation Merlin stating which paragraphs Bob S claimed were true, which incorrect (though in some areas his claims about accuracy might be rebutted by the CIA cables), and which Bob S found to be “overstated,” the witness judged, “We have demonstrated that we did this very carefully.”

But even the timing of the operation raises questions about its efficacy. The CIA started this operation in summer 1996, at a time when (according to national lab scientist Walter C, who testified Wednesday) they believed Iran was a “nascent proliferator.” It took 9 months to reverse engineer a functional design from the intelligence a second Russian asset had provided, until April 1997. The national lab spent 8 months developing flaws and testing them, until late 1997. After that, a set of US experts “Red Teamed” the blueprints, looking for flaws; they only found 25% of the flaws but nevertheless were able to build something workable from the plans in 5 months, in May 1998. It then took over a year to get approval to use these things and get export control approval. There’s no reason to believe the Iranians could work as quickly as the US Red Team. Nevertheless, the US spent 3.5 years setting up the first offer for something that a Red Team was nevertheless able to use within 5 months.

Then there are really curious problems with the story, as told.

For example, according to Walter C and Bob S’ testimony, the CIA and national lab were very intent to build something that looked like a Russian schematic, complete with gaps in information that might arise from Russia’s compartmented nuclear development system (for some reason they had no concern that this would identify the other Russian asset involved in the operation, whose knowledge tracked that gap). In addition, purportedly, they were trying to hide that the Russian called Merlin at the trial — who had a post office box set up to correspond with potential targets, presumably in the US, and who emailed potential targets from the US — was in the US. In spite of both these details, however, they insisted on keeping the parts list — on what was supposed to be a Russian schematic reconstituted from a Russian lab — in English.

Under cross-examination Walter S admitted he had never seen a Russian schematic with English parts list. This led to a question from the defense about why the national lab had a Red Team whose sole job it was to find flaws in nuclear diagrams. “Why do you [meaning, presumably, the lab] have expertise in detecting flaws, all for deception?” The prosecution objected to this, the defense responded, “You opened the door,” but nevertheless Judge Brinkema sustained the objection after a lawyer’s conference. The CIA — or the nation’s weapons labs — have a system of Red Teams that test nuclear dodgy blueprints, but even though the government presented that information, the defense can’t force witnesses to explain why they have one.

The defense was more successful asking why the labs believed Iran had a fire-set program when, by 2007, the CIA judged (in a National Intelligence Estimate released to the public, though that was not explained to the jury) Iran had no nuclear weapons program. Expert Walter C said he was “only vaguely” aware of this assessment, which is rather incredible given the heated debate that ensued when the NIE judgement was released.

Within the context of the trial, perhaps this information didn’t raise real questions about what exactly the government believed it was doing (perhaps one of the plans was to give Iran a list of parts that intelligence agencies could then track the purchase of, which might be far easier to do if the parts are in the US). Perhaps all this (especially the unrebuttable claims about the accuracy of Risen’s reporting) is helping the CIA get its reputation back. But against the context of what else the public record shows CIA was doing at the time, it’s not clear how this restores CIA’s credibility on WMD.

For example, in late 2004, an officer also working in the counterproliferation division of CIA sued for wrongful termination, claiming that — starting in 2000 — his supervisors had ordered him to suppress intelligence because it conflicted with the Agency’s existing assessment of the country’s WMD program. While the earliest reporting on the suit — from none other than James Risen — made clear that some of this suppressed intelligence pertained to Iraq’s WMD program from the period leading up to the Iraq War, court documents filed after that 2007 NIE claim that the first report this former CIA officer’s supervisors asked him to suppress in 2000 pertained to Iran’s nuclear program, the same year as the Merlin operation.

Then there’s what has come to be known as the “laptop of death,” a laptop dealt to US intelligence in 2004 rather remarkably containing everything you’d need to claim Iran had a nuclear weapons program, including plans for a “detonation system.” Colin Powell rolled it out in 2004 as one of his last acts in the Bush Administration. Since then, the Iranians have been trying to prove it’s a fake, with increasing success of late. Nevertheless, that material has formed a significant part of the case supporting Iranian sanctions.

Finally, there’s another operation the CIA rolled out, in 2003, to “get its reputation back.” On June 25, 2003, on the evening before George Tenet had to testify to Congress about why the US had found no WMD in Iraq, CIA hailed the claims of an Iraqi nuclear scientist, Mahdi Obeidi, who claimed to have stashed a blueprint and working parts from an Iraqi centrifuge in a hole in his backyard since 1991. The story was riddled with internal contradictions, which didn’t stop Obeidi from having the almost unparalleled luck among Iraqi WMD scientists of settling in the vicinity of CIA headquarters. One of the oddest parts of Obeidi’s story is that the blueprints, purportedly developed in Iraq by Iraqis from German plans — which CIA briefly posted on its website, then took down — were in English.

On April 30, 2003, less than two months before CIA would roll out those nuclear blueprints in English (and at a time when US government officials were already working with Obeidi), Condoleezza Rice called New York Times‘ editors to the White House and persuaded them not to publish Risen’s story about Operation Merlin, in which (we now know) a Russian parts list rather curiously written in English were dealt to Iran back in 2000. Rice actually went further; she asked Times editor Jill Abramson to make Risen stop all reporting on this topic.

Which brings us to one more detail presented on Wednesday that may not actually help CIA get its reputation back. In 2011, the government hinted that the real problem with Risen’s story was that other US adversaries would learn that CIA was fronting a Russian scientist to deal them dodgy blueprints; Risen’s book does suggest the plan may have been used again. In testimony on Wednesday, Bob S confirmed that. This top counterproliferation official revealed that between 2001 and 2003, CIA had used the Russian dubbed Merlin to approach “other countries believed to be interested in WMD.” More troubling still, a March 11, 2003 cable introduced into evidence revealed that — after Iran had not taken the bait at all back in 2000 — CIA had started to try again with Merlin to reach out to Iran. In 2003, at a time when many worried an invasion of Iran would quickly follow the dodgy imminent invasion of Iraq, the CIA attempted to dump flawed nuclear blueprints into Iran’s hands via their asset, Merlin.

None of these other details will be presented to the jury, and even key details like the NIE judgment won’t come in as evidence with enough context for it to affect the jury’s deliberations in this case. But the way in which newly-revealed details about how Operation Merlin resonates with other dubious CIA claims made around the same time does present another likely motive, aside from the motive of revenge the government claims animated Sterling, to explain why leakers might go to James Risen in 2003 with concerns about the CIA operation.

In Risen’s affidavit to this court fighting his subpoena, he said he “made the decision to publish the information about Operation Merlin” because the case against Iraq “was based on flawed intelligence about Iraq’s non-existent weapons of mass destruction, including its supposed nuclear program.” He cited a 2005 report that “described American intelligence on Iran as inadequate to allow firm judgments about Iran’s weapons programs.” And he noted the “increasing speculation that the United States might be planning for a possible conflict with Iran, once again based on supposed intelligence concerning weapons of mass destruction.” Clearly, in Risen’s mind, this Iranian operation might tie into what he was learning and reporting about the Iraq debacle.

Again, none of this is likely to help Jeffrey Sterling. As Judge Leonie Brinkema noted yesterday, all the government has to do is prove Sterling is one of Risen’s sources, regardless of however many other sources he might have, motivated for whatever reason.

But the CIA seems to believe this tediously presented information helps it get its reputation back, helps explain the operation that appears so dubious in Risen’s book.

For listeners who know the full extent of CIA’s dodgy record on WMD, it does not.

NSA Obfuscated to Congress about Back Door Searches in 2009

/5 Comments/in , /by

The NSA got a lot of criticism for releasing its IOB reports on December 23, just as everyone was preparing for vacation. But there were three reports that — at least when I accessed the interface — weren’t originally posted: Q3 and Q4 2009 and Q3 2010 — all conveniently important dates for the Internet dragnet (I’ll have more on what they didn’t disclose soon).

Apparently those reports were added on New Year’s Eve Eve Eve, an even bigger wasteland for document dumps than Christmas Eve.

Screen Shot 2014-12-31 at 4.24.31 PM

In addition to details about what NSA did and didn’t reveal about the Internet and (to a lesser degree) phone dragnet, the Q3 report also claimed to rebut this June 16, 2009 Risen and Lichtblau article.

Screen Shot 2014-12-31 at 4.30.33 PM

The article pretty clearly reveals the outlines of what we’ve since learned to be big privacy problems behind NSA’s programs — definitely back door searches, and probably upstream collection.

Since April, when it was disclosed that the intercepts of some private communications of Americans went beyond legal limits in late 2008 and early 2009, several Congressional committees have been investigating. Those inquiries have led to concerns in Congress about the agency’s ability to collect and read domestic e-mail messages of Americans on a widespread basis, officials said. Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans’ e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation.

[snip]

A new law enacted by Congress last year gave the N.S.A. greater legal leeway to collect the private communications of Americans so long as it was done only as the incidental byproduct of investigating individuals “reasonably believed” to be overseas.

But after closed-door hearings by three Congressional panels, some lawmakers are asking what the tolerable limits are for such incidental collection and whether the privacy of Americans is being adequately protected.

“For the Hill, the issue is a sense of scale, about how much domestic e-mail collection is acceptable,” a former intelligence official said, speaking on condition of anonymity because N.S.A. operations are classified. “It’s a question of how many mistakes they can allow.”

[snip]

The N.S.A. is believed to have gone beyond legal boundaries designed to protect Americans in about 8 to 10 separate court orders issued by the Foreign Intelligence Surveillance Court, according to three intelligence officials who spoke anonymously because disclosing such information is illegal. Because each court order could single out hundreds or even thousands of phone numbers or e-mail addresses, the number of individual communications that were improperly collected could number in the millions, officials said.

[snip]

But even before that, the agency appears to have tolerated significant collection and examination of domestic e-mail messages without warrants, according to the former analyst, who spoke only on condition of anonymity.

He said he and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits — no more than 30 percent of any database search, he recalled being told — and Americans were not explicitly singled out in the searches.

Over and over, this report clearly describes the accessing of US person data, without warrants, that has been incidentally collected. Rush Holt — then leading an oversight investigation into the NSA — even goes on the record in the article.

The report helpfully includes the rebuttal NSA sent to Congress (starting at PDF 18). The rebuttal goes like this:

  • The NYT story made “it seem as if NSA is broadly irresponsible in executing its mission” under EO 12333 or FISA “The opposite is true.”
  • NSA recently identified compliance issues but these “accusations are far afield of the compliance matters” related to the metadata dragnets and other recent violations. [The NYT had never said they were related, and there’s no evidence Risen and Lichtblau knew of them, except insofar as they also finally confirmed that the hospital confrontation pertained to the Internet dragnet in this article.]
  • It is difficult to know what the NYT’s anonymous sources mean. [The rebuttal makes no mention of Holt’s on the record comments, or the obvious references to back door searches.]
  • Maybe the reference to the examination of US person content is a reference to David Faulk but those allegations are false as the NSA IG will soon report.
  • A largely redacted bullet seems to admit they suck in related emails, as alleged in the article.
  • “The article also identifies a 30% threshold for inclusion of U.S. person information within NSA databases. There is no truth to this statement.”  [Of course, that’s not what the article says, as the red text above makes clear — it talks about how much US person content a search may pull up, not how much is in the databases.]
  • The access of Bill Clinton’s email was in 1992 and it is used as an example in oversight training [which is what the article described — though the rebuttal makes it far more clear that this is an “about” search on what other people are saying about Clinton].

Read more →

What Drove Timing of NYTimes Publishing Risen-Apuzzo Disclosure of McHale Jundallah Contacts?

/10 Comments/in , /by

Saturday night, the New York Times published a blockbuster article by James Risen and Matt Apuzzo that was then carried on the front page of Sunday’s print edition. The article described the jaw-dropping revelation that somehow, a lowly Port Authority detective wound up as the primary contact for Jundallah, a Sunni extremist group on the Iran-Pakistan border that attacks Iran (and sometimes Pakistan) with an aim to unify the region that is home to the Baloch people. Further, it appears that through Thomas McHale’s contacts (and McHale’s membership in a Joint Terrorism Task Force), information on Jundallah attacks filtered into the CIA and FBI prior to their being carried out in Iran.

Iran has long accused the US and Israel of having associations with Jundallah, even going so far as to state that the CIA and/or Mossad equip them and help them to plan their attacks. With negotiations between the P5+1 group of countries and Iran now in the home stretch toward a November 24 deadline, Saturday’s disclosure could hardly have come at a worse time. In fact, John Kerry was in Oman, meeting with Iranian Foreign Minister Mohammad Zarif and Catherine Ashton from the EU over the weekend. Despite this disclosure coming out, Sunday’s negotiating session turned into two sessions and a further session was even added on Monday. Upbeat news is still flowing from that meeting, so on first blush the disclosure Saturday didn’t completely disrupt the talks.

My first thought on seeing the article was that it fit perfectly with the previous front page effort by the Times at disrupting the talks. David Sanger “mistakenly” claimed that a new wrinkle in the negotiations would allow Russia to take over enrichment for Iran. This would almost certainly give hardliners the room they need to kill the deal, since maintaining enrichment capacity is a redline issue for Iran.

The reality is that what is under discussion is that Iran would continue its enrichment activities, but ship low enriched uranium to Russia where it would be converted into fuel rods. Evidence that this pathway is making progress can be seen in this morning’s announcement that Iran and Russia have signed an agreement for Russia to build two more nuclear power plants in Iran. It seems that a new wrinkle on the arrangement might allow Russia to prepare the fuel rods inside Iran:

Russia, which is involved in those talks, will also cooperate with Teheran on developing more nuclear power units in Iran, and consider producing nuclear fuel components there, according to a memorandum signed by the heads of the state atomic bodies, Sergey Kirienko of Russia’s Rosatom and Ali Akbar Salehi of Iran’s Atomic Energy Organization (AEOI).

Just as hinting falsely that Iran was negotiating away its enrichment technology was a move by the Times that could have disastrous effects on the ongoing negotiations, I felt that providing this strange story on McHale would give ammunition to those in Iran who see the CIA behind Jundallah. However,there is another possibility. In a Twitter discussion with Arif Rafiq on the disclosure, Rafiq suggested that “the US is coming clean about something that has concerned Iranians for years. Could be a plus”. He later allowed that hardliners could see it as a smoking gun. A further interesting speculation from Laura Rozen on Twitter suggested that perhaps the US played both sides of Jundallah:

So let’s consider these nicer possibilities for a moment. Maybe we did give Rigi to the Iranians. Maybe we are admitting Jundallah contacts now as a way of making sure it ends. But if that is the case, Risen and Apuzzo are a very strange source for how this news came out. An admission of this sort is what I would expect to be routed through David Ignatius, Eli Lake or Josh Rogin. Risen would be especially difficult to see as cooperating with specific timing on a disclosure. Recall that the Times spiked his disclosure of Bush’s illegal wiretaps until after the 2004 elections and then only published when the book was about to drop. To believe that Risen is now somehow cooperating with the government is a huge stretch, but he does still appear to be at risk of being subpoenaed in the ongoing DOJ actions in response to the wiretapping disclosure.

Many issues surrounding US support for Jundallah (and MEK) are still quite unresolved in my view. Recall that we had the whole “false flag” controversy back in January of 2012, where it was “disclosed” that Mossad ran Jundallah while posing as CIA. Not too long after that, Sy Hersh disclosed that the US has trained operatives for the MEK (no mention of Jundallah at all in the article) for covert actions against Iran. What particularly raised my hackles in that report was that the training was held at the same site in Nevada where I suspect that the materials used in the 2001 anthrax attacks was produced.

Over at Moon of Alabama, b seems to feel that the US was indeed behind the running of Jundallah. For that to be the case, we are pretty much forced to believe that Risen and Apuzzo have been either duped or coerced. I find so much of what has come out to be conflicting that I doubt we’ll ever completely sort this out. I have no doubts that JSOC and CIA stand ready to see Iran’s enemies prosper, especially as we saw in the MEK training in Nevada. When it comes to involvement in actual operations, I just don’t know. But the possibility that we helped at some times and then handed over Rigi possibly to make up for it sounds so like what our rudderless intelligence services would do that I’m leaning that direction.

DOJ’s Cake-Eating on Journalists Will Build Support for Faulty Journalist Shield

/10 Comments/in /by

As many people have reported, SCOTUS today declined to take Jim Risen’s appeal of the Fourth Circuit’s decision requiring him to testify in Jeff Sterling’s trial. As I noted at the time of the decision, this effectively guts any reporter’s privilege in the circuit that matters: the Fourth Circuit governs the CIA and JSOC.

Now, Risen’s team is calling on DOJ to uphold Eric Holder’s promise of last week, that no journalist engaged in journalism will be prosecuted on his watch.

“As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.”

As Kevin Gosztola has noted on Twitter, however, there’s a difference between prosecution and jailing under contempt. So that promise is likely meaningless.

And not only does that put Holder where he wants to be: with the courts on his side, exercising the discretion to jail a journalist or not as he can convince the court.

Furthermore, consider how it creates pressure for Chuck Schumer’s (Administration-backed) badly flawed press shield bill. The bill wouldn’t cover me. It wouldn’t cover Glenn Greenwald. And it would leave James Risen precisely where he is now, subject to a judges ruling on the significance of the information he has.

There was already a lot of support for this bill. But now that the Executive Branch has gained all the leverage where it matters, I imagine there’ll be a greater push to Do Something — even if that just codifies an official press that gets privilege.

On the same day NYT’s Adam Liptak reported this decision, he also did a profile of SCOTUSBlog’s Thomas Goldstein, who — because he doesn’t fit the official model of journalist, in spite of the number of people who rely on his journalism — still can’t get press SCOTUS press credentials. In spite of near universal acknowledgment of the important role SCOTUSBlog plays, the traditional press hasn’t budged, which has helped SCOTUS punt on the issue too.

The closer the press gets to official sanction, the worse the reporting we’ll get.

Friday News Dump Not Dead Yet: Stephen Kim Guilty Plea

/13 Comments/in , , , , , , , /by

Just when Kevin Drum declared the “Friday News Dump” dead, comes proof news of said death was greatly exaggerated.

As Josh Gerstein and others have reported, the plea will be entered this afternoon:

Under the terms of the agreement, Kim will plead guilty to a single felony count of disclosing classified information to Rosen in June 2009, and serve a 13-month prison sentence. Judge Colleen Kollar-Kotelly would have to accept the sentence or reject it outright?, in which case Kim could withdraw his plea. Kim would also be on supervised release for a year, but would pay no fine.

Judge Kollar-Kotelly is expected to accept the guilty plea at today’s hearing, but will not impose a sentence until sometime later.

Well, that is kind of a big deal dropped out of nowhere on a Friday afternoon.

As you may recall, this is the infamous case where the Obama/Holder DOJ was caught classifying a journalist, James Rosen of Fox News, as an “aider and abettor” of espionage. As the Washington Post reported, the scurrilous allegation was clear as day in a formal warrant application filed as an official court document:

“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.

The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.

[snip]

As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.

“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”

“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”

Of course, the fully justifiable uproar over the Rosen treatment by DOJ eventually led to “new guidelines”, being issued by the DOJ. The new guidelines are certainly a half step in the right direction, but wholly unsatisfactory for the breadth and scope of the current Administration’s attack on the American free press.

But now the case undergirding the discussion in the Stephen Kim case will be shut down, and the questions that could play out in an actual trial quashed. All nice and tidy!

Frankly, I have mixed emotions about the reported Kim plea itself. It is, all in all, a pretty good deal for Kim and his attorney, the great Abbe Lowell. The case is done, bad precedent does not get etched into a jury verdict and appeal, and the nightmare has an end in sight for the defendant, Stephen Kim. All things considered, given the seriousness of the espionage and false statement charges in the indictment, 13 months is a good outcome. And it is not a horrible sentence to have as a yardstick for other leakers (were I Ed Snowden and Ben Wizner, I would like this result). By the same token, the damage done by the ridiculous antics and conduct of the DOJ in getting to this point is palpable. It will leave a stain that won’t, and shouldn’t, go away.

That still leaves the matter of Jeffrey Sterling, and reporter James Risen, though. Whither DOJ on that? And it is an important question since the much ballyhooed and vaunted “New Media Policies” announced by DOJ left wide open the ability to force Risen (and others that may some day be similarly situated) to testify about his sources of face jail for contempt.

Drone Strikes on the NYT’s Claim to Have Improved

/6 Comments/in , , /by

NYT Public Editor Margaret Sullivan attempts to tell the story of why the NYT held the illegal wiretap story before the 2004 election. Amid comments from the main players, she effectively admits that the NYT only published in 2005 because James Risen’s A State of War was about to come out.

Michael V. Hayden, who was the director of the N.S.A. and later the director of the Central Intelligence Agency, told me in an interview that he argued strenuously against publication, right up until the moment when The Times decided to go ahead. His rationale: “That this effort was designed to intercept threatening communication” and to prevent another terrorist attack.

In the end, The Times published the story with a couple of guns held to its head: First, the knowledge that the information in the article was also contained in a book by Mr. Risen, “State of War,” whose publication date was bearing down like a freight train. Second, at the end, the word of a possible injunction against publishing, Mr. Risen said, provided a final push: “It was like a lightning bolt.” (Mr. Hayden said that would not have happened: “Prior restraint was never in the cards.”)

Like a game of chicken played on a high wire, it remains “the most stressful and traumatic time of my life,” Mr. Risen recalls. Although The Times later said that further reporting strengthened the story enough to justify publishing it, few doubt that Mr. Risen’s book was what took an essentially dead story and revived it in late 2005. “Jim’s book was the driving force,” Mr. Lichtblau said.

Sullivan doesn’t mention another part of the story: that shortly after the NYT accused Risen of violating their ethics policy because he did not tell the NYT his book covered topics he had reported on for the paper — not just the illegal wiretap program, but also MERLIN, the attempt to stall the Iranian nuclear program by dealing them faulty blueprints. He had apparently told them he was writing a book on George Tenet.

When that news broke in early 2006, I concluded that Risen probably used the threat of scooping the NYT, and a nondisclosure agreement, to actually get the illegal wiretap program into the paper.

Let’s assume for a moment I’m correct in understanding the NYT spokesperson to be suggesting that Risen violated those ethical guidelines by publishing this book. Here’s the scenario such an accusation seems to spell out. (Speculation alert.) Risen attempted to publish both the NSA wiretap story and the Iran nuclear bomb story in 2004. NYT editors refused both stories. Then, in 2005 Risen takes book leave (and I should say that the NYT’s book leave policy is one of the best benefits it offers its writers), misleading his editors about the content of the book. Once he returns, his editors hear rumors that the book actually features the NSA wiretap story. Only in the face of imminent publication of the book do they reconsider publishing the wiretap story. Read more →