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Does Jim Comey Think Thomas Drake Exhibited Disloyalty to the United States?

As you’ve no doubt heard, earlier today Jim Comey had a press conference where he said Hillary and her aides were “extremely careless in their handling of very sensitive, highly classified information” but went on to say no reasonable prosecutor would prosecute any of them for storing over 100 emails with classified information on a server in Hillary’s basement. Comey actually claimed to have reviewed “investigations into mishandling or removal of classified information” and found no “case that would support bringing criminal charges on these facts.”

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

[snip]

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

Before we get into his argument, consider a more basic point: It is not Jim Comey’s job to make prosecutorial decisions. Someone else — whichever US Attorney oversaw the prosecutors on this case, Deputy Attorney General Sally Yates, or Loretta Lynch — makes that decision. By overstepping the proper role of the FBI here, Comey surely gave Lynch cover — now she can back his decision without looking like Bill Clinton convinced her to do so on the tarmac. But he has no business making this decision, and even less business making it public in the way he did (the latter of which points former DOJ public affairs director Matthew Miller was bitching about).

But let’s look at his judgment.

Given that Jeffrey Sterling has been in prison for a year based off a slew of metadata (albeit showing only 4:11 seconds of conversation between James Risen and Sterling) and three, thirty year old documents, classified Secret, describing how to dial a phone, documents which were presented to prove Sterling had the “intent” to retain a document FBI never showed him retaining, I’m particularly interested in Comey’s judgment that no reasonable prosecutor would bring charges based on the facts found against Hillary. Similarly, given the history of the Thomas Drake prosecution, in which he was charged with Espionage because he kept a bunch of documents on NSA’s fraud, at the direction of the Inspector General, which the FBI found in his basement.

I can only imagine Comey came to his improper public prosecutorial opinion via one of two mental tricks. Either he — again, not the prosecutor — decided the only crime at issue was mishandling classified information (elsewhere in his statement he describes having no evidence that thousands of work emails were withheld from DOJ with ill intent, which dismisses another possible crime), and from there he decided either that it’d be a lot harder to prosecute Hillary Clinton (or David Petraeus) than it would be someone DOJ spent years maligning like Sterling or Drake. Or maybe he decided that there are no indications that Hillary is disloyal to the US.

Understand, though: with Sterling and Drake, DOJ decided they were disloyal to the US, and then used their alleged mishandling of classified information as proof that they were disloyal to the US (Drake ultimately plead to Exceeding Authorized Use of a Computer).

Ultimately, it involves arbitrary decisions about who is disloyal to the US, and from that a determination that the crime of mishandling classified information occurred.

For what its worth, I think most of these cases should involve losing security clearances rather than criminal prosecution (though Petraeus also lied to FBI). But we know, even there, the system is totally arbitrary; DOJ has already refused to answer whether any of Hillary’s aides will be disciplined for their careless handling of classified information and Petraeus never did lose his clearance. Nor did the multiple witnesses who testified against Sterling who themselves mishandled classified information lose their security clearance.

Which is another way of saying our classification system is largely a way to arbitrarily label people you dislike disloyal.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The Leak Hypocrisy of the Hillary Shadow Cabinet

In what has become a serial event, the State Department and Intelligence Community people handling Jason Leopold’s FOIA of Hillary Clinton emails have declared yet more emails to be Top Secret.

The furor over Hillary Clinton’s use of a private email account grew more serious for the Democratic presidential front-runner Friday as the State Department designated 22 of the messages from her account “top secret.”

It was the first time State has formally deemed any of Clinton’s emails classified at that level, reserved for information that can cause “exceptionally grave” damage to national security if disclosed.

State did not provide details on the subject of the messages, which represent seven email chains and a total of 37 pages. However, State spokesman John Kirby said they are part of a set the intelligence community inspector general told Congress contained information classified for discussing “Special Access Programs.”

Now, as I have said before, one thing that is going on here is that CIA is acting just like CIA always does when it declares publicly known things, including torture and drones, to be highly secret. It appears likely that these Top Secret emails are yet another set of emails about the worst kept secret in the history of covert programs, CIA’s drone killing in Pakistan. And so I am sympathetic, in principle, to Hillary’s campaign claims that this is much ado about nothing.

But they might do well to find some other spokesperson to claim that this is just overclassification run amok.

“This is overclassification run amok. We adamantly oppose the complete blocking of the release of these emails,” campaign spokesman Brian Fallon said on Twitter. Appearing on MSNBC after the news broke, Fallon vowed to fight the decision.

“You have the intelligence community, including an Intelligence Community Inspector General, as well as the inspector general at the State Department, that have been insisting on certain ways of deciding what is classified and what’s not,” he said. “We know that there has been disagreement on these points, and it has spilled out into public view at various points over the last several months. It now appears that some of the loudest voices in this interagency review that had some of the strongest straightjacket-type opinions on what should count as classified, have prevailed. That’s unfortunate. We strongly disagree with the finding that has been reached today, and we are going to be contesting it and seeking to have these emails released.”

Alternately Hillary can declare that if she is elected, she’ll pardon both Jeffrey Sterling and Chelsea Manning.

Sterling’s prosecution for, in part, having 3 documents about dialing a rotary phone in his home that were retroactively classified Secret, happened while Brian Fallon presided over DOJ’s Office of Public Affairs; Fallon sat by as James Risen got questioned about his refusal to testify. Sterling’s retention of documents that weren’t marked Secret is surely the same kind of “overclassification run amok,” and by the same agency at fault here, that Fallon is now complaining about. So shouldn’t Fallon and Clinton be discussing a pardon for Sterling?

Then there’s Manning. As Glenn Greenwald noted, in that case Clinton had a different attitude about the sensitivity of documents classified Secret or less.

Manning was convicted and sentenced to 35 years in prison. At the time, the only thing Hillary Clinton had to say about that was to issue a sermon about how classified information “deserves to be protected and we will continue to take necessary steps to do so” because it “affect[s] the security of individuals and relationships.”

So if the nation’s secrets aren’t really as secret as DOJ and State and DOD have claimed, shouldn’t these two, along with people like Stephen Jin-Woo Kim, be pardoned?

Amid Fallon and Clinton’s prior support for this level of classification, there’s something else odd about the response to this scandal (which I have said is largely misplaced from the stupid decision to run her own server to the issue of classified information).

First, the response from many supporters — and it’s a point I’ve made too — is that this doesn’t reflect on Hillary because she mostly just received these emails, she didn’t send them. That’s true. And it largely limits any legal liability Hillary herself would have.

But this particular response comes against the backdrop of Hillary attacking Bernie for not giving a foreign policy speech before Iowa (a critique I’m somewhat sympathetic with, although debates have been focused on it), and against this approving story in the Neocon press on Hillary forming a shadow cabinet.

Team Hillary is in the process of setting up formal advisory teams and working groups divided into regional and thematic subjects, similar to the structure of the National Security Council, several participants in the project told me. Unlike in 2008, when Clinton and Barack Obama competed for advisers, this time around all the Democratic foreign-policy types are flocking to her team because Clinton is the only game in town.

The groups report up to the campaign’s senior foreign policy adviser, Jake Sullivan, who was Clinton’s deputy chief of staff and director of policy planning when she was secretary of state.

As it notes, this shadow cabinet reports to Jake Sullivan. Sullivan is, according to one report, the staffer who sent the most emails that have since been declared classified.

Nearly a third of the classified messages released so far from former Secretary of State Hillary Rodham Clinton’s emails came from one man: Jake Sullivan, who served as her deputy chief of staff in the department, and is now the top foreign policy adviser to her presidential campaign.

If Hillary’s supporters argue that she can’t be held responsible because she didn’t send these, does that mean they would hold Sullivan, Hillary’s presumptive National Security Advisor, responsible instead?

Then there’s this detail about outside advisors to this shadow cabinet: it includes Leon Panetta, who not only leaked highly classified information in his memoir, but also would have been busted for exposing the Navy SEALs who offed Osama bin Laden if the game weren’t so rigged to excuse senior leakers.

In addition to the working groups, Sullivan relies on a somewhat separate group of senior former officials who have more frequent interaction with the campaign leadership and Clinton herself. Many of these advisers aren’t publicly affiliated with the campaign because they have leadership roles with organizations that have not endorsed any candidate for president.

But sources close to the campaign told me that Clinton, Sullivan and campaign chairman John Podesta are in regular contact with former National Security Advisor Tom Donilon, former Defense Secretary Leon Panetta and former Secretary of State Madeleine Albright.

Is the effort to keep the identities of the men who killed OBL secret also, “overclassification run amok”? Or does Panetta’s role in Hillary’s foreign policy team suggest her crowd really is that hypocritical about who can leak classified information?

I’d really love it if Hillary came out strongly against the paranoid secrecy that stifles our foreign policy (and just yesterday led to Ashkan Soltani losing a position as a technical advisor for the White House, presumably because of his role in reporting the Snowden documents).

But thus far that’s not what she’s doing: her campaign is making a limited critique of this paranoid secrecy, only applicable when it impacts those close to her.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Government Still Hasn’t Cleared One of Jeffrey Sterling’s Appellate Lawyers

Update, 12/13: Sterling’s team was finally cleared in the days leading up to the December status report deadline. But because of other scheduling issues and the difficulties of working with classified information, his team will not be able to submit their initial brief until February 12, 2016, a year after he was convicted. 

Former CIA officer Jeffrey Sterling appealed his conviction for purportedly leaking information on Project Merlin to James Risen on May 26, before he even reported to prison on June 16. Throughout the summer, the appeal crept along, as most appeals do, in this case, held up in the wait for transcripts from the trial. But in August, it ground to a halt.

Just days after the Fourth Circuit ordered Sterling’s lawyers to submit their first brief on September 28, they revealed that they still hadn’t been cleared to review the Classified Information Protection Act hearings that will apparently be central to his appeal (the delay was caused, in part, by the problems in the electronic filing system revealed by the OPM hack). By October 1, William Trunk had been informed he was eligible for clearance, but needed to undergo indoctrination. That didn’t happen until November 2, the day his lawyers were due to submit a second status report on the status of their clearance. And Lawrence Robbins, Sterling’s other appellate attorney, still hadn’t heard anything about his clearance by that day.

I get that this process sometimes takes a long time. But Sterling has already served almost 5 months of his 42 month sentence, and the government ultimately controls this clearance process.

I’ve heard indications that the government has similarly stalled or limited clearances of already-cleared lawyers in Gitmo cases, so it is not unreasonable to ask whether the delay is an intentional stall.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

In Political Press, Hillary Clinton Gets Subjected to the Thomas Drake and Jeffrey Sterling Standard

clintonpodium_600_1[First posted at ExposeFacts.org]

The political press is abuzz with news that the State Department (State IG) and Intelligence Community Inspectors General (ICIG) have asked the Department of Justice to review whether the Department’s handling of the personal email from Hillary Clinton was proper. The story was first reported in sensational fashion by the New York Times, revised somewhat overnight, and then reported in more measured form — making it clear that Clinton herself is not being investigated — by the Associated Press this morning.

The report has put the practice of retroactive classification of information — of the type that convicted Jeffrey Sterling and DOJ tried to use to convict Thomas Drake — at the forefront of presidential politics.

The referral to DOJ arises out of State IG’s review of the use of private emails and the response to Freedom of Information Act requests for Clinton’s email. After consulting with the ICIG, State IG reported that a number of the emails reviewed so far, including one released to the public, included classified information. The ICIG criticized State for using retired foreign service officers with extensive FOIA experience to review Clinton’s email before release, rather than conducting an interagency process (though according to a response from Patrick Kennedy, the CIA and ODNI had already approved the arrangement).

The referral pertains to State’s actions, not Clinton’s. “[T]he referral doesn’t suggest wrongdoing by Clinton herself,” AP noted. None of the emails in question were marked as classified when she sent them and one of them — pertaining to the FBI’s investigation of the Benghazi attack — was not classified at time she received it. Nevertheless, this news has led to a flurry of stories implicating Clinton in a potential DOJ investigation.

Clinton supporters are dismissing this as election year frenzy. The former DOJ Director of Public Affairs, Matt Miller, even tweeted, “If you examined the entire email [account] of any senior official, someone in [government] would later argue something was classified. Absurd standard.”

But Clinton is not the first this has happened to. After all, DOJ attempted to use five retroactively classified documents to convict Thomas Drake on Espionage charges; once DOJ had to admit that fact, their case against Drake fell apart.

And the only hard evidence DOJ presented that Jeffrey Sterling had improperly handled classified information were documents seized from his home that had nothing to do with the nuclear program he was accused of leaking. When the government introduced three of those documents under a silent witness rule limiting what Sterling’s lawyers could ask about them, CIA’s top classification official admitted they had not been classified as secret at first.

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

“They weren’t,” [CIA Chief of Litigation Support Martha] Lutz responded.

“But they are now properly classified secret?”

“Yes,” Lutz answered.

The defense team made statements revealing that these documents offered instructions on how to dial rotary phones to call into CIA headquarters, hardly a cutting edge secret. Nevertheless, those documents were a key piece of evidence used to send Sterling to prison for 42 months.

Clinton deserves a good deal of criticism for using personal email that has made it more difficult to access via FOIAs. But retroactively classified information should no more be used to prosecute her — in reality or in the press — than Drake and Sterling.

When asked about the double standard via email, Drake did not join the frenzy. Rather, he described “having really bad flashbacks” given the calls to criminally investigate the former Secretary of State because release of the emails put “unauthorized classified information … in adversaries’ hands.”

Perhaps there’s room for agreement here. Via email, Miller noted, “the entire classification system is a mess: overly complex, riddled with ambiguity, and used at times for inappropriate reasons. And because of that you get perverse outcomes.”

Secretary Clinton surely should have made her emails more secure and accessible, via the formal FOIA process, by using official email. But that doesn’t mean retroactively classified information should be used against her anymore than it should be used against Drake and Sterling.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

DOJ Can’t Keep Its Spin Straight in the Sterling Case

As I noted several weeks ago, Jeffrey Sterling challenged his conviction based on the absence of evidence actually implicating him in the crime. On Monday, the government responded.  And while I expect the government will succeed in defeating Sterling’s challenge I am still struck by some very big problems with their story.

As they did at the trial (especially in closing arguments) they argued that Sterling had knowledge of what they claim was the leak, he had a motive to leak it, and he had the pre-existing relationship with James Risen that would explain that he would go to Risen to leak it. So far so good.

They also argued that because Sterling was the only one favorably treated in Risen’s chapter, Sterling must be a source for Risen, which logically doesn’t hold at all.

But in the filing, the government also returns to its efforts — played out in the indictment, rehearsed briefly as both sides tried to make narratological arguments neither was equipped to make, introduced at the opening, but largely dropped during the trial — to a claim that Sterling lied to both the Senate Intelligence Committee and Risen to get them to show interest in his story. Not just that, but they claim Sterling told the same lies to both. This is where their argument starts to fall apart, and fall apart in ways that identify more problems for their argument.

He not only possessed the facts about Classified Program No. 1, he had a motive to spin them in a way that would do maximum damage to the agency. That is exactly what the evidence reflects. Risen’s spin on the program—i.e., that it was botched and risked enabling the Iranian nuclear program—is the same spin the defendant used when he met with Vicki Divoll and Donald Stone from the Senate Select Committee on Intelligence (SSCI) on March 5, 2003, GX 101, the day after he filed his second lawsuit, GX 99, and about a month after his last settlement offer expired. GX 96. Indeed, the only time anyone expressed the concerns Risen parroted in Chapter 9 was when Sterling went to SSCI.

This is wrong on two counts.

First, what Sterling told SSCI was not spin. Here’s what the SSCI report (Exhibit 101) — which Donald Stone claims he wrote on Bill Duhnke’s direction after he informed Stone of an investigation (in which Duhnke was then the prime suspect, for some unknown reason) — says Sterling said.

The operation entailed a CIA asset providing Iran with faulty plans for a Russian based nuclear fire set. Although the plans had been modified by the National Laboratories, Mr. Sterling feared they were insufficiently flawed to prevent a Russian scientist hired by the Iranians from identifying and correcting the mistakes. His concern was based on the fact that the CIA asset recognized the plan’s flaws almost immediately after being shown them. He would have preferred to string the operation out by giving pieces of the plan out over time. In the end, the entire plan was turned over to the Iranians without any means for further follow up. However, CIA supposedly deemed the operation a success. Mr. Sterling fears the CIA gave the Iranians too much information that they can either use themselves or sell to someone else.

And here’s what Stone told the FBI Sterling had told them, but which (in his memo written after he knew of the investigation) he didn’t include in the investigation.

Which is why the details Stone provided the FBI, which would have been captured in his notes but which didn’t show up in the report, are so interesting. First, Sterling said that “they did the equivalent of throwing it over a fence,” an admission of how shoddy the pass-off of the blueprints was. Then, that one of CIA’s two assets involved “got cold feet,” an admission that Merlin almost backed out just before the trip to Vienna. And that one asset (it actually sounds like Stone might have meant Human Asset 2, the other Russian, which the records actually support) “recognized the plans were faulty.”

Every single one of these details are true, not spin. Not only did Merlin immediately say the plans “would not work” (and in testimony said the real plan would have been “100 times more complicated than it was shown in drawing and the schematics”), but the other Russian involved — the guy who gave the plans to the CIA in the first place — apparently had problems with them as well. The National Lab got the plans to work in 3 months (not 5, as Walter C testified under oath), at least according to CIA’s own cables. And the entire operation was premised on the assumption that Iran had access to Russian engineers. 

In addition, Merlin did get cold feet, as extensively documented by CIA cables, and confirmed — once he presented it as protecting his own family — by the Russian’s testimony.

But the most important evidence from Sterling’s report to the SSCI is that he complained that “the entire plan was turned over to the Iranians without any means for further follow up,” largely because “they did the equivalent of throwing it over a fence.” Not only are those claims absolutely true — as confirmed by both Bob S and Merlin’s sworn testimony at the trial — but they are one of the two key points of his whistleblower complaint to Congress. Not only did CIA give Iran a nuclear blueprint. But they did so, Sterling worried (according to the SSCI), in such a way as to make further follow-up and intelligence gathering almost impossible. He would have rather strung out the operation so as to collect intelligence.

And that’s important, because that complaint doesn’t show up in Risen’s book with the details that substantiate it, appearing only as “the CIA also gave the blueprints to the Iranians without any certain way of monitoring their use by Iranian scientists.”

Indeed, there are details in Risen’s book that are inconsistent with both the real basis of Sterling’s worry and the facts as presented by CIA cables, Bob S, and Merlin, though not with the instructions originally given to Merlin. The book repeats the instructions that Merlin was not supposed to hide that he lived in the US.

The Russian was also told not to try to hide the fact that he now lived in the United States.

And it includes the final line of the letter it claims Merlin left, indicating his contact information was on the next page.

My contact info on next page.

The thing is, probably because of Bob S’ suppression of the actual details of the operation as executed — Bob S’ false spin, not Sterling’s! — the CIA documents included these details, but they are inaccurate, per both Bob S and Merlin. Merlin did everything he could to ensure any tie with the US was hidden. “Nobody likes United States in the world,” Merlin testified, “I’m not stupid. I can put in danger my family.” And he had been doing so for almost a year by the time of the operation. And according to Merlin — and Bob S claims he knew this at the time — Merlin did not provide the contact information the Iranians would need to contact him.

In other words, a key part of Sterling’s concern, that as Merlin executed the operation, he had left the Iranians no way to contact him and therefore largely prevented any follow-up contact, doesn’t show up in Risen’s book. The “spin” is not the same, and in fact Risen’s version misstates a key concern Sterling shared with SSCI.

If Sterling had wanted to get Risen to publish the same story he told to SSCI, he surely would have foregrounded that Merlin refused to do as he told with respect to leaving his contact information.

And that’s important for two reasons.

First, as I noted, FBI proved unable ultimately to find the version of the letter Merlin left (or the letter that appears in Risen’s book, which is almost certainly a different thing). And FBI proved unbelievably incurious about why Risen was quoting from a report on Merlin’s trip that Bob S claims never existed, a report that included the details that Bob S suppressed in his own reporting of the operation.

Here’s how the government’s filing deals with their inability to produce the actual letter.

The evidence at trial established that over a period of months, the defendant, Robert S., and Merlin worked on drafting and editing a letter for Merlin to provide to the Iranians. See, e.g., DE 435 at 22-23. The document went through multiple drafts. On January 12, 2000, the defendant sent a cable containing the then-current version of the letter. GX 35. Two days later, on January 14, 2000, Robert S. responded in another cable, requesting certain changes, including that the letter make explicit that the schematics were being provided for “free.” GX 36 at 1. There were no additional changes reflected in any cable traffic. The version of the letter that appears in Chapter 9 is the January 12, 2000, formulation, with Robert S.’s suggested changes from January 14 incorporated into the document—i.e., the final version. Compare GX 35 at 2, and GX 36 at 102, with GX 132 at 13-14

This is false. As I laid out, not only did Bob S’ instructions include agreement that the letter should be stripped of “puffery” that it retains in the Risen version, but Bob S himself testified that the letter that appeared in the book was not the final letter either.

In response on January 14, 2000, Bob S wrote (Exhibit 36),

We agree with [Sterling’s] comments that the verbiage needs to be tightened up still further to make sure the Iranians understand what he has and on what terms. He should say explicitly that he is offering the schematic and associated parts list free to prove that he can provide further information, and acknowledge that what he is providing initially is incomplete. There should be a very clear message that he expects to be paid for the rest of the details they will need if they want to build the device.

[snip]

Each iteration of his draft letter is better than the previous one, so [Sterling]‘s patience seems to be paying off. It is worth our while to take the extra time to make sure he finally gets it just right, since the letters will have to do much of the work for us with the target.

Now, given Merlin’s payment strike at the following two meetings, it is possible CIA never got around to making the changes Bob S wanted. The fact that Bob S, not Sterling, wrote the cables from those meetings means we would never know, because unlike Sterling, Bob S never included the text of correspondence in cables he wrote (as I laid out here). But Bob S — who ran both the remaining meetings before the Vienna trip with Merlin — clearly wanted changes. And while the letter appearing in Risen’s book retains what Sterling called Merlin’s “puffery” language, it does reflect two of the changes Bob S asked for: reiteration that this package was meant as an assessment package, and an indication Merlin had emailed IS2 to alert him to the package (though see my questions about whether he really did in the update to this post).

In his testimony, Bob S claimed that what appeared in the book was the “nearly final draft,” explaining that the reference to Merlin getting paid was “sharpened” still further after the version that appears in the book. If true, given the way the final meetings worked out, Bob S may have been the only one who would know that.

In spite of the abundant evidence that Bob S was more likely to have these late iteration letters than Sterling, the government goes further to argue — as they prevented Sterling from arguing at trial — that he probably didn’t do his job and that’s why there isn’t a final version of the letter.

It would be entirely reasonable for a jury to conclude that an individual, who was terminated for failure to perform his assigned duties, GX 62 at 1, might also fail to properly document all of his contacts with an asset.

This would require that Merlin and Sterling made changes Bob S knew about, did not document them verbatim as was Sterling’s (but not Bob S’) consistent practice, and Bob S never noticed. Indeed, Bob S insisted at trial that the CIA writes everything down (in contradiction to the evidence that, while Sterling did, he did not). It’s just not possible.

And, as I mentioned, the motion never deals with — as the entire trial didn’t either — the report which Merlin and Bob S say never existed but gets quoted extensively in Risen’s book, which included information which Bob S suppressed in official CIA communications but admits are factually correct.

But the mistranslation of Sterling’s concern is important for another reason: the errors in Risen’s book, errors which Sterling not only knew to be errors (per trial evidence), but errors that make no sense given FBI’s claimed spin. The big one — the one that pissed Merlin off the most — was the claim he was a defector (I’m less convinced that Risen’s claim that CIA helped Merlin get citizenship is entirely false, because there’s reason to believe they did accelerate his green card and treat it differently to allow him to do the Vienna trip).

That is, while there are details that (according to FBI) only Sterling, Bob S, and Merlin knew that weren’t documented (though the majority of those were in the report they didn’t look for), there are also a slew of details that show someone ill-informed, but not in a way that matches’ Sterling’s actual or purported concerns, was talking to Risen.

All this is probably moot. The government will succeed with this motion on evidentiary grounds and the interesting venue argument will be revisited in the Appeals Court.

But it is worth noting that the government’s narrative, even as laid out in a careful motion, continues to make no sense.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Yes, Eric Holder Does Do the Intelligence Community’s Bidding in Leak Prosecutions

 

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The second-to-last witness in the government’s case against Jeffrey Sterling, FBI Special Agent Ashley Hunt, introduced a number of things she had collected over the course of her 7.5 year investigation into James Risen’s chapter on Operation Merlin. That included a few things — most notably two lines from Risen’s credit card records from 2004 — that in no conceivable way incriminated Sterling.

On November 17, 2004, Risen charged €158.00 at the Hotel Inter-Continental in Vienna, Austria on his credit card (the provider of which DOJ included in its exhibit). On November 21, 2004, Risen put another €215.30 in Inter-Continental charges on his credit card.

What Agent Hunt had proven by highlighting these two details was that James Risen traveled to Vienna as background for a book chapter set in Vienna, and even went to the hotel where Merlin had stayed. None of that did a thing to prove that Sterling leaked Merlin’s travel information — or anything else — to Risen. But the government decided to gratuitously enter into evidence that they had seized years of Risen’s credit card records, and in doing so obtained details of where Risen had traveled (and also, on what days his daughter sent something via FedEx). It wasn’t enough that we knew that already from court filings. DOJ still saw the need to introduce gratuitous notice that they had all of Risen’s credit card statements into the court record.

“We own you,” seemed to be the message to Risen from this flaunting of his credit card records.

But don’t worry, Eric Holder generously decided not to call Risen to testify against Sterling after having hounded him — in this and the warrantless wiretap investigation — for 6 years already, both Jack Goldsmith and Ben Wittes insist.

Both men seem to vastly underestimate how DOJ’s actions in the last decade impact journalism. And both men seem to misunderstand what just happened in the Jeffrey Sterling trial, where DOJ succeeded in exposing a man to 40 years in prison, based largely on metadata, without even having the key pieces of evidence at issue in the case (almost certainly because of CIA’s doing, not Sterling’s).

Uncharacteristically, Wittes’ post is less annoying that Goldsmith’s. Sure, as he did with Laura Poitras, Wittes appointed himself the arbiter of what the NYT should and shouldn’t tolerate from journalists it pays. I will remember that Wittes believes an employee’s intemperate rants on Twitter should get close scrutiny by their employers the next time Wittes makes factually flawed defenses of his torturer buddies on Twitter or complains when Chris Soghoian tweets about Keith Alexander’s operational security sloppiness when he rides on Amtrak.

But Goldsmith writes two paragraphs about leak prosecutions that — while they may bolster Goldsmith’s questionable claims about how journalism functions to rein in the Executive — entirely miss the point. I’ll take them in detail here:

Third, Holder could have called Risen to testify in the Sterling case – the law was clearly on his side, and DOJ attorneys wanted him to do it.  But Holder directed his lawyers to let Risen off the hook.  It is simply wrong to say (as Risen did) that Holder was doing the “bidding of the intelligence community” or sending “a message to dictators around the world that it is okay to crack down on the press and jail journalists.”  Quite the contrary.

The notion that the trial Holder’s DOJ just staged in Eastern District of Virginia was not about “doing the bidding of the intelligence community” makes me tear up I’m laughing so hard. A very key part of the trial was putting Bob S on the stand so he could make claims about Operation Merlin — which turned out not to be backed up by the documentary evidence or his asset’s memory — so as to be able to claim, “We have demonstrated we did this very carefully.” This was a clusterfuck of an operation, but nevertheless DOJ gave Bob S a day and a half to try to claim it wasn’t. DOJ offered CIA this favor while playing their classification games (this was, after all, EDVA, an improper venue for almost all of the charges, but a very good place to get favorable treatment for security theater) so as to avoid explaining — except when it became handy for Condi to blurt something out — why this operation went from being a clandestine information collection operation to something far more sensitive, which is probably the real reason someone other than Sterling leaked the information as the government was trumping up war against Iraq, the next country that got the Merlin treatment.

It’s EDVA, Goldsmith!!! The same place Holder went to have John Durham pretend to investigate CIA’s obstruction of justice until the statute of limitations expired! The same place Holder went to keep investigating and investigating until DOJ could deliver a head, any head, to punish Gitmo defense attorneys’ crazy notion that they might have good reason to want to learn how and who anally raped their clients in the name of rehydration such that they’re still bleeding, 12 years later.

EDVA has become, under Holder, where DOJ goes to obtain arbitrary judgments that ensure CIA and other agencies will never be held accountable for crimes, but some low-level leaker will be delivered up anytime CIA’s crimes or incompetence get exposed.

Fourth, Risen’s complaints about Holder rest in part on the fact that Holder has presided over many more leak prosecutions than any prior Attorney General.  I suspect that any Attorney General would have ramped up the leak prosecutions in light of the unprecedented cascade of deep secrets from the government in the last decade.

Here Goldsmith makes the same nonsensical claim that Steven Aftergood made for The Intercept’s profile of Stephen Kim. The investigation into James Risen’s stories has been going on for twelve years. The investigation into Risen’s reporting on Operation Merlin started over four years before Chelsea Manning even joined the Army, much less started the torrent of leaks Goldsmith claims justifies all these investigations.

And the ratio of leak prosecutions to leaks remains tiny.

This line comes right out of Holder’s defense of his leak prosecutions the other day. And it’s true. But it’s a big part of the problem. Thus far, after all, James Cartwright has not been indicted for allegedly leaking a far more sensitive counter-proliferation program targeting Iran than Sterling purportedly leaked. No one is even considering prosecuting Leon Panetta for leaking details of the Osama bin Laden raid (or classified details in his memoir). I doubt David Petraeus will be indicted either for letting his mistress have access to all his most intimate secrets.

The people who get prosecuted — Jeffrey Sterling, John Kiriakou, Donald Sachtleben, Stephen Kim — they’re not the problem behind this system of leaking and in several cases it’s very clear they’re not even the key leakers: instead, they’re the human detritus the government can dispose of so others will see just how arbitrary the secrecy system really is, by design.

But in any event, it must be true that these prosecutions have had a chilling effect on leakers (i.e. sources) and in that sense made journalists’ jobs harder.  Of course chilling criminal leaks is the whole point of the prosecutions.  They do not “wreck” the First Amendment if they are consistent with the First Amendment, which they are, especially since the prosecutions have not had any noticeable macro effect on the steady flow of secrets out of the government.

I suspect Risen would say this is not the case. I suspect a number of the other journalists targeted by DOJ would say the same. That is, the point is not about stopping leaks (though I think the Insider Threat system will make it easier to pick and choose which human detritus will be the next sacrificed to feed this arbitrary system of control), but often as not burning certain journalists or others who don’t play the game.

We own you, investigative journalist, and know what you did in Vienna back in 2004.

Note also that Risen and other journalists tend not to talk about the countervailing norms that have moved dramatically in journalists’ favor in the last decade.  (I have written about this extensively, here and here and here and here.)  Not only has the government significantly raised the bar for going after journalists’ sources, but it has also made clear what was not clear a decade ago: it will not prosecute journalists for publishing classified information in clear violation of 18 USC 798.

I think here Goldsmith misses the novel theory the government used to convict Sterling, the one Holder has deemed the model to go after others.

Under this theory, journalists will be treated as empty vehicles, and the “cause to leak” language in the Espionage Act will be blown up, so that even completely unclassified conversations may be deemed the cause of an investigative journalist with sources throughout the CIA publishing a story. And the jurisdiction, too, will be blown up, so that so long as a single hairdresser buys a book in EDVA — or maybe MD, who cares, really?!?! — then DOJ can stage their witch hunt in EDVA with all its trappings of security theater.

There are some interesting theories behind the successful prosecution of Sterling for a bunch of metadata. And Goldsmith might at least familiarize himself with where Holder’s DOJ is taking the Espionage Act, because it deserves more scrutiny before the Sterling prosecution is deemed to have done no damage to the journalistic process.

Given this change in norms and the structural factors pushing secrets out (size of bureaucracy, digitalization of secrets, and the like), it is very hard to conclude that the advantage on secrecy versus transparency has shifted to the government under Holder.

Again, the underlying problem is the asymmetry involved. The government keeps hiding more and more stuff — the top officials behind its trust-building CVE program, even! — behind a veil of secrecy. That amid increasingly absurd claims of secrecy — and increasingly persistent evidence the secrecy often serves to hide law-breaking or incompetence, as it did with the Merlin caper — more secrets get out should be no great celebration. It’s the structure of it all — the paranoia, the arbitrariness, and the incompetence behind it all — that really sours any claim to democratic governance. Goldsmith may take solace we’re getting more secrets out, but until we reverse the slide into arbitrariness it heralds, I’m not so sanguine.

During the hearing just after the defense closed in the Sterling trial, there was a fascinating discussion, largely about how DOJ planned to blow up the “cause” language in the Espionage Act to further criminalize just talking to journalists, to criminalize publishing a book and deigning to distribute it in EDVA. The conversation kept coming back to how DOJ had gone from treating Risen as a criminal weeks earlier to treating him as an innocent naif who channeled Sterling’s spying to the unwitting citizens of EDVA. Judge Leonie Brinkema at one point said, “If Risen were not protected by the newsman’s privilege, I suspect he would have been named as a co-conspirator.” “There is no newsman’s privilege,” defense attorney Edward MacMahon pointed out, laughing at the absurdity of claiming there was after the 3 year battle over just that topic. But the exchange hung there, pregnantly, because ultimately branding Risen a criminal — or, barring that, branding having even unclassified conversations with Risen as criminal — was a big part of the point of this trial.

What this prosecution did — what, I believe, it was designed to do — was two-fold. First, burn Risen, burn Risen over 12 long years of investigation during which the counterpart investigation even reportedly seized his phone records. But also, to herald a new interpretation of the Espionage Act that will criminalize even having phone calls with a journalist who has reported on completely unclassified stories involving you in the past.

Update: Year on Risen’s credit card records corrected per Rich.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

DOJ Doesn’t Want You To Think CIA Doctored Evidence in the Sterling Trial

On October 4, 2011 (just before Jeffrey Sterling’s trial was originally due to start) the government submitted a motion that, in part, sought to prevent Sterling from presenting “any evidence or any argument that the CIA has manipulated documents.” The motion presented the crazypants idea that the CIA might alter or destroy documents as part of a conspiracy theory that the CIA wanted to blame Sterling for leaks others had made.

There is absolutely no evidence that the CIA was out to get the defendant, or that the CIA orchestrated some grand conspiracy to blame the defendant for the leaks to Risen. Any arguments or comments that the CIA engages in misconduct or has manipulated documents or evidence in order to blame the defendant for the disclosure of national defense information appearing in Chapter 9 lacks any merit and will needlessly send the Court, the parties, and the jury down an endless Alice-in-Wonderland rabbit hole.

Sterling’s lawyers were nonplussed by this demand. “Documents will be admitted if they are authenticated and otherwise admissible.”

Now, if DOJ were writing about most governmental agencies, you might interpret this request as no more than prosecutorial caution, an effort to exclude any hint of the other things the same motion tried to exclude — things like selective prosecution.

Except the CIA is not most governmental agencies.

Indeed, it is an agency with a long and storied history of serially destroying evidence. The Eastern District of VA US Attorney’s Office knows this, too, because they have so much experience reviewing cases where CIA has destroyed evidence and then deciding they can’t charge anyone for doing so.

And while I don’t expect Judge Leonie Brinkema of CIA’s own judicial district to therefore deny the CIA the presumption of regularity, I confess DOJ’s concern that Sterling might suggest CIA had doctored or destroyed evidence makes me pretty interested in what evidence they might have worried he would claim CIA doctored or destroyed, because with the CIA, I’ve learned, it’s usually a safer bet to assume they have doctored or destroyed evidence.

Especially given the two enormous evidentiary holes in the government’s case:

  • The letter to the Iranians Merlin included with his newspaper-wrapped nuclear blueprints
  • A report of Merlin’s activities in Vienna

As I lay out below, CIA’s story about the letter to the Iranians is sketchy enough, though the government’s ultimate story about it is at least plausible. But their story about Merlin’s non-existent trip report is sketchier still. I think the evidence suggests the latter, at least, once did exist. But when it became inconvenient — perhaps because it provided proof that Bob S lied in the cables he wrote boasting of Mission Accomplished — it disappeared.

But not before a version of it got saved — or handed over to — James Risen.

If I’m right, one of the underlying tensions in this whole affair is that a document appeared, verbatim, in Risen’s book that proved the CIA (and Bob S personally) was lying about the success of the mission and also lying about how justifiable it would be to have concerns about the operation.

The CIA and DOJ went to great lengths in this trial to claim that the operation was really very careful. But they never even tried to explain why the biggest evidence that it was anything but has disappeared.

Merlin’s letter to the Iranians

I’ve noted before that the FBI admits it never had a copy of the letter the government convicted Sterling of leaking to James Risen. “You don’t have a copy of the letter” that appears in Risen’s book, Edward MacMahon asked Special Agent Ashley Hunt. “Not in that exact form,” she responded.

Nevertheless, Count 2, Count 3, and Count 5 all pertain to a letter that appears in Risen’s book, the letter FBI never found. The letter appears at ¶¶ 58 to 63 of the exhibit version of the chapter in question.

To be sure, FBI did obtain versions of this letter, as cables introduced at trial reflect. The first iteration appears in Exhibit 30 (a cable describing a November 4, 1999 meeting), and discussions of the revisions process appears in Exhibit 33 (a cable describing a December 14, 1999 meeting). Exhibit 35 — dated January 12, 2000 and describing a January 10 meeting between Sterling and Merlin — provides the closest version to what appears in Risen’s book, in what is called (in Exhibit 36) the fifth iteration of the letter. The only difference (besides the signature line, presumably, according to the CIA’s currently official story) is the January 12, 2000 cable, based on a meeting that took place 7 weeks before Merlin left for Vienna, said this:

So I decided to offer this absolutely real and valuable basic information for [Iranian subject 2], about this possible event.

Whereas in Risen’s book that passage appears this way:

So I decided to offer this absolutely real and valuable basic information for free now and you can evaluate that. Also I sent e-mail to inform [the Iranian professor] about this possible event.

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Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The Merlin Operation: Bob S’ 70% Thinking

When he cross-examined the Merlin Operation manager Bob S at Jeffrey Sterling’s trial, defense attorney Barry Pollock asked whether Bob S  thought he was doing 70% of the thinking on the operation. When Bob S denied that, Pollock reminded Bob S of his February 28, 2006 FBI testimony, where he had said he was doing 70% of the thinking to Sterling’s 30%. “This was shortly after publication of book that revealed the whole operation,” Bob S explained his earlier comment. “I was being ungenerous.”

Similarly, when he cross-examined Merlin himself, defense attorney Edward MacMahon asked whether he had told the FBI in March 2006 that Sterling (whom elsewhere Merlin called “lazy” and “irresponsible” while denying earlier statements he had made about Sterling’s race) was just a middleman between Merlin and Bob S who helped prepare the letters Merlin would send out to Iran.

MacMahon: You, you told the FBI that Sterling merely acted as a middleman — and this is in 2006 — as a middleman between you and Bob to prepare letters to be included in the package of technical documents, right?

Merlin: Some kind of, yes?

MacMahon: So the person that was making the final say as to what went in any letter you sent as far as you knew was Bob, right?

Merlin: I, I don’t know what is hierarchical.

I raise these comments — both apparently made only after the publication of Risen’s book — because of some oddities in the CIA cables documenting the operation.

Bob S’ 70%

To some degree, the cables that cover the period when Sterling handled Merlin do make it clear the degree to which Bob S was running this operation, and Sterling was just holding Merlin’s hand as he tried to reach out to Iranians.

Over the period in question (the first meeting when Sterling met alone with Merlin was January 12, 1999; he handed over Merlin to Stephen Y on May 24, 2000 (though it appears Bob S had already excluded Sterling from at least one meeting, as noted below), most of the cables written by Sterling deal with the tedium of Merlin’s pay and include — always verbatim — Merlin’s correspondence with the Iranians. Sterling’s cables often ask for input from Langley on Merlin’s drafts; he expresses some concern about the lag during spring 1999 when CIA was getting export control approval for the program.

Then, in the May 13, 1999 cable (Exhibit 24), as Merlin seems to be getting more interest from Iranian Institution 4 (in spite of his having sent his resume and business proposition letter separately), Sterling notes that Bob S will need to inform Merlin where the program heads from here. “[M] should expect a visit from Mr. S who will provide an update on the definite direction of the project. [M] understands that there are aspects of the project that require certain approvals beyond the purview of C/O.”

The next cable (Exhibit 25) describes the May 25, 1999 meeting at which Bob S, with Sterling in attendance, told Merlin that the target of this operation would be Iranian Subject 1. This plan actually dated back to December 18, 1998 (Exhibit 16). In that cable, Bob S referenced a November 20, 1998 cable (not included as an exhibit nor apparently turned over to FBI as evidence) that apparently described IS1’s “new public position” for which he would be “arriving in Vienna in Mid-December to assume his new duties” (one of Bob S’ later cables would identify IS1 as the Mission Manager in Vienna). But it wasn’t until May of the following year when Bob S (and not Sterling) instructed Merlin that he should start finding ways to reach out to IS1. Note, one paragraph of that cable — following on a discussion of IS1 — is redacted.

At the next meeting — on June 17, 1999 (Exhibit 27) — Merlin told Sterling that he was having problems locating IS1, though some of this discussion is redacted.

Then, in spite of the indication that Sterling had tentatively scheduled a meeting for July 5, 1999, we see no further meeting reports until November 5, 1999. (Though on July 23, 1999, someone applied for reauthorization to use Merlin as an asset; Exhibit 29.) It appears that only one cable from this period, which would have been numbered C2975-2976, was turned over during the investigation but not entered into evidence, if the Bates numbers on the cables are any indication. Given the report in the 11/5/1999 cable that Merlin had gone AWOL, it’s likely things were already going south between him and Sterling. From that period forward, Bob S either soloed or attended most meetings with Sterling and Merlin, with one very notable exception.

The exception was the January 10, 2000 meeting (Exhibit 35) at which Sterling informed Merlin CIA would withhold money Merlin believed — rightly, it appears — he was owed. Given that Sterling had already (on November 18, 1999) unsuccessfully requested a transfer out of NY, where he believed he was being harassed for his race, it’s hard not to wonder whether they deliberately sent Sterling out to deliver the bad news, anticipating they’d soon be giving Merlin a new case officer within short order anyway.

All of that is to say that, in spite of the several ways that Sterling appears to have managed Merlin with more professionalism than his prior case officer and arguably even than Bob S, Bob S was running the show, which includes making key decisions and at key moments, dictating how the reporting on the operation appeared.

Two versions of November 18, 1999

To see how this manifested, it’s worth comparing the two cables recording (in part or in whole) the November 18, 1999 meeting between Bob S, Sterling, and Merlin.

The first version (Exhibit 31), written on November 24 by Bob S from Langley and addressed to NY and Vienna — Office #5 — for information, appears under the heading “Iranian Subject 1 is in Vienna” and references a cable from Vienna (this cable, too, appears not to have been turned over as evidence). As such, the cable describes the results of the meeting with Merlin in context of the arrival of IS1 in Vienna, using the “good news” offered by Merlin as an opportunity to flesh out the plan for the blueprint hand off in Vienna. Presumably, paragraph 2 of the cable (which is redacted) lays out the news on IS1’s presence in Vienna. Bob S then presents all the good news involving Merlin in that context with a flourish.

During an 18 November Meeting with [M] Officer [Jeffrey Sterling] and HQS CPD Officer [Mr. S.], [M] provided two pieces of good news. The first was that he has obtained a new [Country A] passport (which he showed C/O’s) and will soon apply for an Austrian visa. His possession of a Green Card should facilitate the issuance of the latter. The second and more significant development was an e-mail dated 7 November which [M] had received from [Iranian Institution 1] Professor [Iranian Subject 2 IS2). [IS2] said he had been going through old e-mailsl and found a 1998 message from [M]. He asked [M] to respond and provide more information about himself. [M] did so in a generic fashion. This contact from [IS2] provides an excellent opportunity to ease [M]’s (and his disinformation packet’s) way in to [Iranian Subject 1 (IS1)] who until recently was also [at Iranian Institution 1] and is still featured on its website.

He then goes on to lay out what he presents as a plan crafted with the help of folks at HQ and Sterling (remember, this was written from Langley, not NY). That plan includes recognition that Merlin is “no one’s idea of a clandestine operative;” to compensate for that, Bob S envisions (resources willing) a Sterling trip to Vienna so he can help provide clear instructions to Merlin as well as Mrs. Merlin traveling to Vienna with the scientist because she was instrumental in his cooperation with the CIA in the first place and is a calming influence.

4) Shortly before he prepares to launch in Vienna (see below RE timing and mechanics) we will have [M] advise [IS2] via e-mail that he is going on vacation in Vienna with his wife and will stop by the Iranian IAEA Mission there with a packet of interesting information for [IS2], asking IS2 to alert the mission to expect [M]. When he shows up at the mission, [M] will have the packet containing the [CP1] disinformation in an envelope addressed to [IS2] and will ask to see [IS1] to make sure the package gets delivered to the right man. [IS1] is likely to acknowledge that he too is from [Iranian Institution 1] and that he knows [IS2]. This will let [M] plant his story (of repeated efforts to find a receptive audience in Iran) more firmly and give the Iranians a chance to see that [M] is indeed a Russian and a nuclear weapons veteran. Even if [IS1] does not see [M] presenting a package with a known addressee at a prestigious Iranian [redacted] institution can only help advance our plan to have the information taken seriously.

5) Per discussion at HQS and with [Sterling], we believe it best to send [M] to Vienna with his wife in early January (after the Austrian Christmas pause and the Islamic holiday of Ramadan, which begins on 9 December and ends on 8 January) to make the approach to [IS1]. His wife, [Mrs M], was instrumental in getting him to cooperate with [CIA] in the first place and is a definite calming influence on him. [M] is no one’s idea of a clandestine operative and we believe it wiser to refrain from meeting him while he is in Vienna. That said, he needs to be thoroughly prepared. One option – contingent on available resources – would be for [Mr S] and [Sterling to] visit Vienna during the first week of the New Year [redacted] so he can given the rather differently-oriented [M] as much concrete detail about where he has to go and what he has to do as possible. [1 line redacted]

Spoiler alert: while Mrs. Merlin did travel to Vienna with her husband (and probably had a big role in even getting him to go and — my suspicion is — had a role in the operational security measures Merlin took which helped doom the operation, though neither she nor the CIA would ever admit that), Sterling never did make the trip, and Bob S’ instructions — which Bob S’ habit of flourish aside were probably also deficient because he was too familiar with the city — ended up being one of the problems with the trip. It’s worth mentioning, too, that according to Bob S’ testimony, he made several trips to case out Iran’s IAEA mission in the months leading up to the operation and one of his cables describes having done so too.

Now compare Bob S’ cable with Sterling’s (Exhibit 31), written on December 1, 1999, a week after Bob S’ cable and 12 days after the actual meeting (it’s probably worth noting that on the very same day this meeting took place, Sterling asked for a transfer out of CIA’s New York office, and within 5 days his boss was scolding him for having done so), and addressed to Langley and — like Bob S’ cable — Vienna, for information.

Sterling saves his enthusiasm over the outreach to Merlin from IS2 for his last paragraph.

Feel this is a fortuitous turn of events for the operation, as a preliminary thought, the contact from [IS2] can be exploited to either provide another person to present the material to, or somehow utilize this contact to provide a more definite entree to [IS1] for [M].

Curiously, that paragraph seemed to show little awareness of Bob S’ extensive plans for how to exploit the IS2 contact to provide “a more definite entree to IS1,” even though Sterling references the cable Bob S wrote.

Aside from the first, action, paragraph in Sterling’s cable (which is redacted), the sole apparent explanation for why he wrote a cable after Bob S had already written one reporting all the same news from the meeting as Sterling would seems to be the inclusion of the verbatim content of the outreach from IS2.

During the meeting, [M] mentioned that he had received the following email from [Iranian Subject 2 (IS2)] from [Iranian Institution 1] dated 7 Nov:

Dear [M]

I was reviewing my old mails. I found you last year email. I want to know more about you. Could you let me have more information regarding your work, your hobby, your interest, etc?

Regards,

[Iranian Subject 2]

[IS2]’s email address is [redacted]

It’s not surprising Sterling included the verbatim email — he always did that in cables he wrote solo. It’s just rather curious that Sterling submitted his “preliminary thoughts” — along with the verbatim language — so long after Bob S had rolled out his plan.

Prelude to a clusterfuck

The next cable (Exhibit 33), dated December 16, 1999 and describing the December 14 meeting between Sterling, Merlin, and Bob S, reflects continued uncertainty about how to get Merlin to Vienna in such a way that he didn’t screw up the operation. “[M] has and will be provided with enough information so that any concerns he will have about finding the building should be alleviated,” the cable optimistically predicted. At that point, however, it wasn’t getting lost that had Merlin worried. It was that his wife would find out what he had been up to (though she almost certainly already knew).

When asked, [M] expressed as his main concern actually carrying the documents on his person when he travels to Vienna. [M]’s preference is that his wife ([Mrs. M]) not know any specifics about his work for the CIA. He feels certain that she will discover the package and have many questions that he would prefer not to have to answer.

Note that the action paragraph of this cable is redacted.

Read more

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Merlin’s Testimony: “It’s Lie,” “I Don’t Remember,” and “I Don’t Know”

I’ve finally gotten a hold of the transcript for Merlin’s testimony in the Jeffrey Sterling trial (working on getting something I can post; he was apparently difficult to understand, in any case, so not even people present understood all this).

Reading it, it’s clear why the government has claimed, going back to 2011, that Merlin’s imminent death from cancer meant he should not testify. I don’t dismiss the gravity of his health problems (and also note that he is apparently on pain killers, including Oxycontin, which may have affected his testimony here). But he was a terrible witness, and pretty clearly lying on a great number of accounts.

But I’m interested in specifically how he denied things that appear either in James Risen’s book or in CIA cables.

It’s lie

About two things, Merlin was adamant. The first is the same thing that really elicited the Merlins’ ire when they read Risen’s book: the report that they were defectors.

Trump: It says you defected to the United States. Is that accurate?

Merlin: It’s lie.

Note, given the timing and the claim that Merlin might have been involved with the Soviet Union’s 1980s-era nukes, I entertain the possibility that they defected to some other country before moving to the US in the early 1990s. That’s true, especially, because when Merlin got his passport renewed in 1999, he did so from a country the name of which got substituted (meaning it probably wasn’t Russia; the original appears to be 9 characters long, so Ukrainian is a possibility), though it could just be a successor state. Whatever the case, the timing of the Merlins’ arrival in the US and their certainty with which the government repeatedly said they did not defect convince me that Merlin is correct here: they were not defectors.

Similarly, Merlin is equally adamant that the description in Risen’s book that Merlin tried to warn the Iranians of “flaws” in the blueprints he handed them was not true.

Trump: In paragraph 64, the book represents on page 205 that the letter was warning the Iranians as carefully as you could that there was a flaw somewhere in the blueprints. … Was that the purpose of the letter?

Merlin: It’s, it’s lie. [Later] I don’t see flaws here. It was just incomplete information.

While it’s certainly true that Merlin’s and the government’s understanding of the significance of the incomplete information in the blueprints was very different — elsewhere Merlin claimed that a real fireset schematic was “100 times more complicated than it was shown in drawing and the schematics” — it is also true that Merlin appears not to have known about the deliberate flaws US scientists put in the blueprints. So he is correct that the representation in Risen’s book is incorrect on that point.

I don’t remember

Then there are a series of questions about which Merlin likely feels some shame, about which he professed not to remember the correct answer. One of those topics pertained to whether his wife also spied (note, Merlin and the CIA both are almost certainly lying about how much Mrs. Merlin knew about this operation).

Trump: Did your wife at the time also agree to cooperate with the CIA?

Merlin: No.

Trump: Did she eventually?

Merlin: She didn’t know anything about it.

Trump: She didn’t know anything about what you did, is that correct?

Merlin: Yes.

Trump: But she was interviewed from time to time by the CIA as well?

Merlin: I don’t remember. Probably.

Merlin’s wife remained on the CIA payroll after he claims he stopped getting paid. Surely he knows that. But he’d prefer not to admit it.

Another of the topics about which Merlin forgot the correct answer came in response to a defense question about whether he ever used his American PO Box in communications with Iranians.

MacMahon: Did you testify earlier today that in all of your communications with the people, the Iranian institutions or otherwise, that you, you didn’t use any kind of an American address in any of those documents?

Merlin: I don’t remember.

Now, it’s possible Merlin’s earlier answer on whether he had used his PO Box on correspondence with Iran is correct: that is, it may be that he always ignored CIA’s orders to do so, and CIA simply never found out about it (perhaps in part because the case officer before Sterling did not track that correspondence as closely as Sterling did). But the CIA record shows that he first started balking about using his actual geographic location about a year before going to Vienna, but before that had publicly used his PO Box.

I don’t know

Then there are a series of questions where Merlin clearly either had forgotten key details, or wanted to avoid admitting the truth.  For example, when asked by prosecutor Jim Trump (who had met with Merlin before this deposition to go over it) whether this was a rogue operation, Merlin first offered up that it was a “brilliant” operation (elsewhere he took credit for Iran not have gotten nukes since 2000).  But when asked a question to which the answer is clearly yes — whether it took significant persuading for Merlin to complete this operation — he claimed he didn’t know.

Trump: It states that prior — prior to your trip to Vienna now is what is being discussed here. “It had taken a lot of persuading by his CIA case officer to convince him to go through what appeared to be a rogue operation.” Is that accurate?

Merlin: It was not rogue operation at all. It was brilliant, brilliant operation.

Trump: Did it take a lot of persuading by you — excuse me, by your case officer to go through with the operation?

Merlin: I don’t know.

Merlin walked out of the meeting on final preparations, after having walked out of the meeting prior. That wasn’t, apparently, because Merlin cared whether this was rogue or not, but because he thought the risk to him was too great for the money he was being paid. But the answer to whether it did take persuading should have been yes.

Just as interesting, when Merlin was asked by defense attorney Edward MacMahon whether he had ever before this deposition told the FBI or CIA he had destroyed the disk on which the final version of the letter to the Iranians, he said he didn’t know.

MacMahon: The first time you–you were, you were asked questions over, over a space of many years, and you never told the FBI at all that you had destroyed the disk that you took to Vienna, did you?

Merlin: I don’t know, but there was, was no reason to bring it back. It just put myself in additional danger to have such disk in possession. If somebody stop me and read this disk, I’m in trouble.

MacMahon: Okay. But you didn’t tell the FBI, you didn’t tell anybody until today as a matter of fact that that’s what your story was as to what you did with the disk in Vienna, correct?

Merlin: I don’t know, but again, it was no reason to keep this disk when action was, operation was accomplished, and no reason to keep it as a drawing, as letter, as whatever.

The answer is clearly no, but Merlin doesn’t want to admit that for some reason (I’ll return to the significance of this question in a future post).

Read more

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

CIA Stiffed Merlin on His Spy Salary

Screen Shot 2015-02-07 at 1.04.06 PMBob S — the guy in charge of the Merlin operation — appears to have made a false claim under oath at the Jeffrey Sterling trial.

To be fair, I think he told a lot of fibs — shading his description of a program that was an operational disaster as something less laughable, even as walking the court through documents that (upon a close read) make it clear how laughable the program was. And I suspect — though cannot yet prove — that he engaged in far more serious deceit while testifying against Jeffrey Sterling under oath.

But according to CIA’s own records, Bob S was not telling the truth when he claimed, repeatedly, “our record keeping was better than” Merlin’s about his complaint, in early 1999, that he hadn’t been paid his full salary the previous year was incorrect. He was not being fair to Merlin when he claimed, when Merlin complained again in early 2000 — just weeks before Merlin would travel to Vienna to hand the Iranians a newspaper-wrapped nuclear blueprint — that was “getting cocky” when he demanded he get paid his salary.

To be sure, Merlin also appears to have bilked the CIA over the years, charging them for things like his long distance phone line and a $200 modem, presumably as a way to increase his take from the Agency.

But the CIA knew Merlin was working with them for the money. “[M]’s operational motivation for this activity is almost purely financial., and his desire to continue earning income from [CIA] something that [M] was very frank and honest about during his meeting with C/O and CPD officers,” his then-handler Laurie D wrote in a cable (Exhibit 5) pitching him for the operation in January 1997.

In spite of the importance of money to Merlin’s motivation, they do appear to have botched their record keeping, every bit as much as Merlin. And it was an issue that — even according to Bob S — poisoned the working relationship between Sterling and Merlin. But it also appears to have made Merlin much less willing to do what CIA wanted him to do.

On February 24, 1999 (Exhibit 21), Sterling and Merlin met for 3 hours. During the meeting, Sterling paid Merlin “one-third of his ’98 salary (USD 20,000.00)” but then reminded Merlin that he could only be reimbursed for things tied to his work with the CIA and expressed confusion that Merlin was billing the CIA for two phone lines when he should only be billing for the one tied to Internet access (by this point, Hotmail). “From that moment on,” Sterling told Merlin, “[M] would only be reimbursed for the phone line dedicated for use by [M] in furtherance of the project.”

Merlin responded by noting he had been making the same amount (so, presumably $60,000, though Langley disputed that in his testimony) for two years, and “some adjustment may be in order.” Merlin suggested that a raise would do away with his need to charge the CIA for petty expenses like the phone line. While an entire paragraph of this discussion is redacted, in response, Sterling and the New York office recommended he get at least a $250/month raise, and asked Langley to consider Merlin’s request for life insurance, given that he was contemplating meeting Iran, which raised some risk.

On March 16, 1999, Sterling explained (Exhibit 22) that Merlin’s new agreement “will include an increase of USD 1000.00  in his monthly salary. [Sterling] said that with such a sizable raise, there would be some changes with regard to the reimbursements that [M] has been receiving. [Sterling] explained that [M] would not longer be reimbursed for phone expenses related to his use of the Internet for the project.” And Merlin was on his own for life insurance. Again, almost a paragraph of this financial discussion is redacted, but that should have raised Merlin’s salary to either $72,000 (if the $60,000 Sterling used) or $67,000 (using the disputed amount) once he signed his new agreement.

On April 12, 1999 (Exhibit 23) — less than two months after handing over “one-third of his ’98 salary (USD 20,000.00),” Sterling “had to inform [M] that the balance of his 1998 salary is USD 55,000.00 as opposed to 60,000.00.” So Merlin did what any underappreciated worker might do. “[M] threatened to quit since the money discrepancies seem to crop up every year. [Sterling] immediately challenged [M] on his statement asking [M] if he was ready to quit based on a mere USD 5,000.00 (especially in light of the total amount of his salary). [Sterling] requested a point blank answer from [M] on what his actions will be. [M] calmed down and said that he is weary of the same pay discrepancies occurring year after year, but said he will not quit the project.”

Sterling went on to suggest he, as the case officer, might not have been entirely certain what was going on. “[Sterling] told [M] that the reason for the discrepancy will be found, and that it is not beyond the realm of possibility that [M] has already been paid for one month out of ’98 that would make his ’98 total USD 55,000.00. [M] then signed a receipt for USD 35,000.00. To date, [Sterling] has paid [M] USD 55,000.00 representing his 1998 salary.”

Most of the following paragraph is redacted, though it speaks “also” of a “M/2’s” status update — perhaps a reference to Merlin’s wife, who was also a CIA asset.

On May 5, 1999, Sterling seemed to confirm that Merlin had been correct (Sterling appears to have used the wrong date in paragraph 2). (Exhibit 24) “[Sterling] paid [M] USD 5,000.00 as the balance of his 1998 salary (USD 60,000.00). [Sterling] believes that the previous confusion with regard to the amount of [M]’s 1998 salary was based on the fact that his [agreement] spans a Feb – Jan timeframe which is somewhat different from the normal fiscal year timeframe of Jan – Dec.”

There’s a big jump in cables before the next meetings described, in part because the government didn’t introduce the July to October ones into evidence, in part because Merlin went AWOL for the month leading up to a November 4, 1999 meeting. From what we see of cables between November and January, though, money issues don’t arise again until January 10, 2000, at one of what appears to be the first meetings in a while where Sterling meets with Merlin without Bob S as well. As Sterling notes in the summary of the meeting (Exhibit 35), “Despite the progress made and [M]’s apparent readiness, issues related to [M]’s salary [redacted] have placed doubt as to whether [M] is willing to continue with the project.” Here’s what Sterling had to tell Merlin just weeks before he was supposed to deliver a nuclear blueprint to Iran in Vienna:

[Sterling] took pains to explain to [M] in a reasonable fashion that the current payment scheme was causing problems and that a new structure had to be introduced. [Sterling] also explained that [M] would be receiving a [“additional information regarding his 1999 salary” replaces 3-4 redacted lines]. [M] had no difficulty that his future salary would be paid to him as earned [one line redacted] [Sterling then told [M] that as a result of the measures being taken to correct his salary situation, review of his salary history indicated that he had been overpaid by USD 5,000.oo in Feb ’98. And, as a result, his ’99 salary would have to be reduced by 5,000.00. [Sterling] had 60,000.00 for [M] representing Feb -Nov ’99 (6,000 per month). Though [M] earned 66,000 for Dec ’99, this amount was reduced by 5,000.00 per HQS information that [M] was overpaid by 5,000.00 in Feb ’98. [Sterling] chose not to bring the remaining 1,000.00 in anticipation that [M] would not understand the reduction in his salary amount. During the conversation, [Sterling] tried to explain that the remaining amount (either USD 1,000.00 or 6,000.00) would be paid at the next meeting once it is clearly determined that [M] had in fact been overpaid by 5,000.00.

[M became incensed and said that [Sterling’s] infoformation was not correct. [M] said that the money he received in Feb ’98 was for a Dec ’97 payment that he had not received and therefore had not been overpaid in 1998 as [CIA] contends. [M said that he has waited too long for his finances to be corected and that he did not wish to  proceed with project any longer. [M] then proceeded to blame [Sterling] for the salary problems. However, [Sterling] quickly reminded [M] that the difficulties experienced with his finances were a result of activities prior to ’99, i.e. before [Sterling] was involved.

After some more back-and-forth, Merlin left the meeting. Sterling called him the following day. And while Merlin was calmer, he still said that “he will not proceed with the project unless and until he receives [additional information about his salary] and USD 66,000.00 that he believes he is due, or a promise from us that these items are coming to him.” In the cable, Sterling and his manager suggested that Bob S travel to NY to explain and resolve it.

Two days later, Bob S wrote back to Sterling (Exhibit 36), apologizing that Sterling had to do the dirty work, but showing little sympathy for Merlin.

HQS regrets that [Sterling] was a victim of the murdered messenger syndrome after bringing (not very) bad news to [M]. Any confusion about [M]’s salary is largely his own fault because he wanted to be paid different parts of his salary in different years. That said, he may be right about the early 1998 payments, and he is evidently quite emotional beneath the stolid surface and not capable of sorting it all out rationally. He has had a lucrative relationship with us since 1994 and is acting in an immature fashion. Nevertheless, we need his services now and [Mr. S] will seek to placate him. We propose paying him the disputed salary. We will carefully consider an appropriate operational bonus upon the successful completion of his Vienna mission.

The next cable, describing a February 14 , 2000 meeting with Merlin (but written by Bob S back to NY), revealed that Merlin remained pissy about the salary issues, actually walking out of the meeting at which Bob S was supposed to placate him. Bob S doesn’t provide much detail on what happened, describing Merlin’s “histrionics” as having to do with “minor proposed changes in his [agmt],” judging that “none of [M]’s desires concerning his [agmt] are show stoppers (cash payment, [redacted] a small disputed sum),” and stating he would bring the previous year’s agreement and work off that to a follow-up.

Bob S’ account of that follow-up visit (which Sterling did not attend; Exhibit 38; this time the cable Bob S writes the cable from NY to Langley) indicates “we could meet him halfway on when and how he is paid,” though the roughly 4-5 line description of what that means is redacted. Bob S “paid him $66,000 for his 1999 earnings and provided $5000 as a travel advance.”

Which is what happened immediately before Merlin got on a plane to Vienna and failed to follow most instructions about how he was supposed to hand over a nuclear blueprint to Vienna.

Now, I lay this out not just because it shows CIA’s dysfunction again. All the more when you compare the numbers submitted as a stipulation at trial (see above), which make it hard to understand how Merlin is not absolutely correct that the CIA stiffed him in 1998. Even if his salary was supposed to be just $55,000 and even accounting for the weird accounting he apparently requested, he received less than $49,000 in a year when 11 months at a $55,000 rate would have been $50,416. And at least from the narrative we have, Sterling made all the payments to Merlin that transpired in 1999, and the money that Bob S ultimately paid Merlin would might work out to be $71,000, but that would not seem to account for his $1,000 raise. It’s possible they changed all that in the redacted bits (or, as CIA seems to like to do, retroactively). But both the confused actions of Sterling and Bob S and the actual numbers compared to the stated numbers in the cables suggests, at best, that CIA’s accounting system is just as screwy as Merlin’s could have been, if not worse. (Note, the first several years of Merlin’s finances with the CIA also don’t appear to match the testimony of his first case officer, Stephen B, who said they had a dispute over whether Merlin would work one year for $150kK or two for $300,000, the latter of which is what the CIA wanted.)

So there was no reason for Bob S to claim that Merlin was in the wrong. At the very least, CIA’s records were so fucked up, neither a case officer or a program manager could figure this out over months and years. And it at least appears Merlin is in the right (but then, what court can he appeal to?).

At one level, I attribute this to just more Bob S spin — along with his inability to hide his disdain for others and his real need to blame others for the clusterfuck that became the Merlin program.

But it’s important to identify because it raises one possible motive for the Merlins to want this story to come out (remember, at first they weren’t all that bugged by the book, until they realized Merlin looked bad in it). But it also puts another perspective year-and-a-half leading up to the beginning of Sterling’s disastrous end with the CIA. They were treating his job as case officer to fix the financial screw-ups made years earlier. Bob S sent him out to do that alone, and only after came in to rain down cash on Merlin.

It was probably just garden variety CIA (even, generic bureaucracy) screw-ups behind the scenario. But nevertheless, it likely had real consequences both for Merlin’s willingness to do his job as ordered and Sterling’s feelings about the trustworthiness of the Agency.

 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.