On March 16, 1999, Jeffrey Sterling met with Merlin, the Russian scientist Sterling was trying to get to establish ties with Iran so he could hand off a nuclear blueprint. (Exhibit 22) Merlin seemed to be getting impatient — and perhaps a little insulted — that the Iranians he was approaching weren’t showing more interest in his 20 year experience as a Russian nuclear engineer. So he made an utterly bizarre suggestion.
[M] then suggested that in some of his future messages, he may make mention of the recent revelation that another country had secured nuclear secrets from the U.S. [M]’s reasoning was that others now see that it is possible to obtain nuclear secrets which can advance their programs, and that the project can build upon that supposition to entice the Iranians. [Sterling] lauded [M] for his thinking but said some thought would need to be given to such a proposition prior to [M] implementing it.
Merlin has to be referring to the stories about Wen Ho Lee which started appearing on page one of the NYT starting on March 6, 1999. (Remember, too, that Merlin lived in the NY area, so if he read this in the dead tree version — as most people still read newspapers in 1999 — he most likely read it in the NYT.)
Those stories were written by James Risen.
Which is strong evidence that Merlin was reading Risen as far back as 1999.
Merlin’s suggestion — that he, a CIA asset, entice Iran to accept his Russian blueprint by pointing out that China had allegedly jump-started its own nuclear weapon program by stealing blueprints from the US — reveals just how unclear on the concept of the operation Merlin was. After all, it had to have been suspicious enough to Iran that a Russian who had moved to the US was seeking to deal blueprints (it’s unclear whether the blueprints were ultimately in English or Russian). Any suggestion that the Iranians would thereby be getting US, as opposed to Russian, technology should have alarmed them greatly.
It’s also, of course, a bizarre commentary on the arc of Risen’s career, that the main character in a future book of his would be monitoring nuclear developments by reading Risen. Risen, of course, managed to protect his sources in both cases, in a series that unfairly identified Wen Ho Lee as a Chinese spy and in a book that raised real questions about what our nuclear establishment was doing.
I’m still waiting for Merlin’s transcript on this point, but his wife was asked whether she and her husband knew of or knew Risen. “I start to know about Jim Risen after he wrote the book,” Mrs. Merlin testified on the stand in her imperfect English. She went further, asserting that her husband did not know (it’s unclear whether she meant “of,” or “personally”) before, either. Given how much of the Wen Ho Lee story was driven by Risen between March 6 and March 16, 1999, Merlin probably had known “of” Risen for years before Risen started reporting on the operation that we now refer to by Merlin’s codename.
And yet, I’m fairly certain, the fact that Merlin offered up Risen reporting to the man now convicted of having leaked to Risen, Jeffrey Sterling, 4 years before that leak began, never got mentioned at the trial.
Witness after witness in the Jeffrey Sterling trial made claims about how closely held the program was. “More closely held than any other program,” Walter C, a physicist who worked on the program described. “More closely held,” David Shedd, currently head of the Defense Intelligence Agency and head of Counterproliferation Operations until just after the Merlin op, said.
Of course, Bob S’ admission that — when FBI showed him a list, in 2003, of 90 people cleared into the program, he said it was incomplete — suggests all those claims are overstated.
But the details of just how careless the CIA was with Merlin’s identity raise further questions about claims that the operation — and especially Merlin’s identity — was closely held. Most striking to me is the revelation (Exhibit 17) that for months and months, Merlin was pitching his nuclear experience to Iran on an AOL account shared with his wife and kids. In the cable describing a January 12, 1999 meeting with Merlin (what appears to be the first where the two met alone) Sterling explained that Merlin had just opened a separate Hotmail account to use for his CIA spying.
“[M] also opened another email account through Hotmail. [M] opened the new account so his family, who also utilizes his AOL account, cannot access his email related to the project.”
That means from at least April 15, 1998 (see Exhibit 8, though Exhibit 16 suggests the effort started in November 1997), when Merlin started trying to make contact with Iranians who might be interested in a Russian nuclear scientist, until January 1999, Merlin’s contacts with Iran were completely accessible to his wife (who, given the evidence — as opposed to the sworn claims — presented in the trial, almost certainly knew anyway) and his kids (who may not have).
The AOL to Hotmail account switch appears to have been Merlin’s idea, but Sterling’s performance review for this period (Exhibit 60; note, it uses the name Samuel Crawford to protect Sterling’s identity) seems to reflect Sterling’s effort to train Merlin out of bad security habits. It says Sterling, “maintained a strong [counterintelligence]/security posture in all that he did during the reporting period, particularly a high interest sensitive case … and is constantly seeking to improve the security of his cases.” Indeed, the same cable covering the January 12, 1999 meeting in which Merlin and Sterling alone took part — which revealed Merlin had finally gotten a dedicated email account for his CIA work — also described Sterling walking Merlin through changes to his handling approach, including apparently meeting in hotel rooms rather than primarily restaurants all in the same neighborhood. Sterling also appears to have had to prompt Merlin to share all his correspondence with the Iranians with him (though Merlin didn’t always do so).
The CIA, it appears, intended for Merlin’s real identity to be readily obvious to the Iranians (and, based on the presumption at the heart of this operation that the Iranians were working closely with Russia, also to the Russians). On several occasions, defense attorneys asked CIA witnesses if they were “dangling” Merlin, a term the witnesses clearly wanted to avoid repeating. Nevertheless, it is clear they intended to dangle him, barely hiding his identity or location. Merlin used his real name in his outreach to Iran. He cited “his true background” in messages to Iranians (Exhibit 16; note that in Exhibit 17 and 18, CIA has actually redacted some of the information on himself Merlin sent to Iranians). He used his home email address in classified ads (and changed it when he got the Hotmail account). His approaches used a PO Box that appears to have been close to his home. (Exhibit 16)
Then there were other issues that raised alarms for me. From roughly October 12, 1998 through December 10, 1998, spanning the period when Merlin went to San Francisco for his “training” on the blueprints, Merlin’s home computer was being repaired (he accessed some email from work). When he got the computer back “it seemed slower.” Shortly after Merlin got the new email (Exhibit 18), he told Sterling he had been blocked out with an “Intrusion detected,” warning, and had been told “evidently at least two people had tried to open the account.” In February 1999 (Exhibit 21), Merlin told Sterling he was having problems with his AOL account (though didn’t explain what sort). Then there’s the period in October and November 1999 when Sterling couldn’t contact Merlin; he said he was visiting his wife in Florida. Admittedly, Sterling was tracking this stuff closely (I wonder whether the government had Merlin on what amounted to a consensual wiretap). Because the government only released cables from the period when Sterling handled Merlin, however, we can’t know whether the earlier, sloppier operational security extended to Merlin’s online life.
And ultimately, this loose operational security — and Merlin’s backlash to it — appears to be one of the things that led Merlin to botch the operation, to (apparently) give Iran what was meant to look like a sales proposal with no way for Iran to contact him. A full year before the delivery (Exhibit 18) Merlin started using initials rather than his name in correspondence with the Iranians. He balked at the CIA’s insistence that he send a (slightly doctored) resume along with his outreach attempts. He started sending related letters via separate envelopes, even sending them from separate states (CIA doesn’t appear to want to hide that Merlin was in a position to send letters from both New Jersey and Connecticut).
It was very clear that Merlin did not want his identity associated with the documents in question and — because CIA had decided to have him finalize the letter on his own in Vienna — he chose not to leave much of it with the package. He left off his PO box from the package, which was how the Iranians were supposed to respond, which was one key to any ongoing intelligence gathering aspect to the operation. The CIA had Merlin leave a sales pitch with no way for interested buyers to act on that sales pitch.
And yet they called this operation a big success.
As the Senate Intelligence Committee’s report (Exhibit 101) on Jeffrey Sterling’s whistleblower complaint describes, “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.” The government repeatedly claimed Sterling lied or spun facts to get the SSCI and Jim Risen interested in this story. But on this point — that Merlin left a nuclear blueprint wrapped in newspaper without an address to follow-up with — Sterling was absolutely correct.
Walter Pincus had a piece yesterday purporting to lay out the inaccuracies in the chapter of James Risen’s State of War. In it, he includes this passage.
In Vienna in late February 2000 to deliver the materials to an Iranian mission to the International Atomic Energy Agency, the Russian, according to Risen’s book, “unsealed the envelope with the nuclear blueprints and included a personal letter of his own to the Iranians. No matter what the CIA told him, he was going to hedge his bets. There was obviously something wrong with these blueprints — so he decided to mention that fact to the Iranians in his letter.”
Risen’s book reprints the letter, saying the Russian later gave the CIA a copy.
The CIA trial witnesses and agency memos tell a different story.
The agency plan always was that the schematics and drawings would have some obvious flaws — and the Russian engineer was told about them. It also was part of the plan from the start that the design materials were to be accompanied by a letter from the Russian noting some errors. A Jan. 10, 2000, CIA memo carries a draft of what it describes as “the letter to be included in the package of material.”
It has elements almost word for word found in the letter as printed in the Risen book, but it was written cooperatively with CIA input and made part of the document package for the Iranians more than a month before the Russian arrived in Vienna.
Now, I think the trial did show that there were some inaccuracies in the book — the one the Merlins cared most about is that they weren’t defectors.
But I find it really curious that Pincus claims these were errors. I say it’s curious because unless I’m mistaken, the transcripts for all the CIA witnesses save Bill Harlow have not been loaded onto the docket and so probably aren’t yet done. And in the 5 of 6 days of testimony I attended (including all but a few minutes of Bob S’ testimony, whom Pincus cites by name), I didn’t see Pincus in the courtroom once. And with the exception of Merlin himself, the CIA witnesses I missed, for the most part, talked about issues other than the Merlin operation. So it’s unclear where Pincus got his understanding of CIA witness testimony, and what he got is inaccurate.
Indeed, in this limited example, Pincus makes two pretty significant errors: in suggesting Merlin was supposed to know about the flaws in (as opposed to the incompleteness of) the blueprints, and in suggesting the CIA is certain about what Merlin left at the IAEA in March 2000.
First, the flaws. Throughout discussions about this operation, there has been some confusion between the flaws and the incompleteness, which has allowed the CIA to push back on the story when in fact the CIA records show this may be a convenient way to claim Risen’s book was wrong when what the CIA thought is meaningless if the Russians still had concerns. While Merlin was told the blueprints were incomplete, he was not told about the flaws the nuclear lab (probably Sandia) put in the blueprints that were supposed to prevent the Iranians from using them (but only held back a national lab team 3 months in using the same blueprints). According to my notes, for example, Bob S said they “didn’t want to say [the blueprints] were intentionally flawed,” to Merlin. Nevertheless, there is reason to believe that Merlin and (far more importantly) the other Russian asset involved in this operation saw what they believed were problems that would make the blueprints not serve the purpose the Russians believed they were supposed to serve, and there is reason to believe that those concerns were never adequately addressed.
In addition, as I noted in this Salon piece yesterday, CIA doesn’t actually have the final version of what Merlin left with the IAEA. They claim — with questionable credibility, which I’ll return to — not to know what was in the formal letter Merlin left. Bob S himself agreed in his testimony that Pincus supposedly reviewed that Merlin is the only person who knows what he put in the final version. At the very least the story the CIA tells is that Merlin took a copy of the letter drafted in conjunction with the CIA to Vienna but with the nuke references altered to make sure he could get through customs (Bob S called it “sanitized”), then changed them back on the hotel computer and printed a fresh copy (note, earlier in this process, Merlin at times sent stuff off to the Iranians before the CIA had a chance to review it, so he had a history of freelancing). He then destroyed the disk he used, meaning no one — according to what Merlin told CIA — has a copy (though the almost-final version without any last minute changes would reside on Merlin’s poorly secured home computer). Interestingly, Risen’s book says Merlin wrote a report back, but Bob S and Merlin (apparently) claim he did not.
But that printed letter is not all Merlin left with the blueprints. He also left a handwritten letter in his packet of newspaper-wrapped nuclear blueprints — what Bob S called a “cover note.” The current story — relying on an earlier idea floated during the drafting period but not formally adopted — is that the cover note would help alert the Iranian staffers to the ultimate intended recipient of the letter. But that letter was by all appearances ad-libbed by Merlin. So we only have Merlin’s word for what he wrote.
Now these are just two details — details in Risen’s book that Pincus claims were disproven by cables and Bob S’ testimony — but which were anything but.
I will have a much longer summary of all the other details that came out at trial that made it clear the operation was an even bigger shitshow than Risen’s report makes out. But for the moment, I’m just curious what Pincus is trying to accomplish. Perhaps he was in the back of the courtroom for a tiny part of Bob S’ testimony and neither I nor the several other journalists I asked noticed him. But (at least as far as testimony) it appears he’s working off second-hand claims about what the record says and claiming, falsely, that they specifically disprove Risen’s book.
Why would whoever provided Pincus this partial view of Bob S’ testimony be so desperate to claim that Risen’s book was proven wrong?
In a piece for Salon, I describe how the government managed to get Jeffrey Sterling convicted of 7 charges under the Espionage Act for one leak. More importantly, I show how the jury’s conviction of him for 2 of those charges — related to “causing” James Risen to write a 2003 NYT story on Merlin that got quashed — may well amount to convicting him for tipping Risen, without sharing any classified information, to the operation.
Here’s the key part of that discussion:
D.C. information brokers should be worried that Sterling faces 80 years in prison based off this circumstantial evidence. All the more so, given the evidence supporting the charge that Sterling leaked to Risen in time for and caused him to write the article Risen told CIA he had in completed draft on April 24, 2003. After all, the only pieces of evidence that the government submitted from before the time when Risen told CIA he had a completed article were the CNN email, phone calls reflecting Risen and Sterling spoke for four minutes and 11 seconds across seven phone calls, and Sterling’s entirely legal discussion with staffers from the Senate Intelligence Committee.
No matter what you think all the later phone calls between Sterling and Risen indicate, short of evidence of a face-to-face meeting in this earlier period, the evidence seems to suggest Sterling was doing something that people in DC do all the time: point an investigative reporter to where she might find classified scoops, without providing those scoops themselves. That’s especially true given the way the CIA’s own notations about Risen’s story seem to track the reporter fleshing out information, from initial outlines of the operation (that happen to map what Sterling told Senate staffers) to, weeks later, inclusion of that elusive document FBI never managed to find. That is, it appears Risen got a tip, possibly from Jeffrey Sterling, but that he spent weeks using his sources to flesh out that tip.
In both the indictment and discussions about jury instructions, the government interpreted the Espionage Act to cover what might be an unclassified tip through two means. First, they pointed to language in the Espionage Act that criminalizes someone “caus[ing secrets] to be communicated, delivered, or transmitted,” and from that argued Sterling was responsible not just for the leak to Risen but also for the journalist’s attempt to publish a newspaper article and his completion and his publisher’s delivery to Virginia of a book chapter. Then, for most counts, they argued that Sterling did not have to have handed Risen secret information directly, he could do so indirectly.
If the jury found Sterling indirectly got secrets into Risen’s hands and, from that, caused him to write an article and a book chapter on it (irrespective of the additional work Risen did, the work of his editors at the Times and the publishers at Simon and Schuster and the commercial freight company that carried those secrets in a bound book to Virginia), that was enough to send him to prison for most of the rest of his life.
While it’s all well and good that DOJ backed off plans to force James Risen to testify, I think few realize the implications of Sterling being held responsible for an entire NYT story based on four minutes and 11 seconds of phone conversations.
They may well criminalize providing unclassified tips to get reporters to chase down classified stories.
After having deliberated for slightly over 2 days, the jury today found Jeffrey Sterling guilty of all nine counts today. (See a summary of the charges here.)
I’m not surprised the jury found Sterling guilty of some of the charges: of leaking Risen information on Merlin and the operation he was involved in, and of retaining and then leaking Risen a document involved in that. The government multiplied the charges for both the 2003 New York Times story (at which point, Sterling and Risen had only spoken for two minutes and 40 seconds) and the 2006 book (by which point they had had more lengthy discussions), such that each leak amounted to multiple charges. In addition, the jury convicted Sterling of passing government property worth over $1,000, and of obstruction of justice.
It’s the last charge that really raises questions about how the jury understood their instructions.
That’s because the government charged Sterling for obstructing the investigation by destroying a totally unclassified email he sent to James Risen in March 2003; he destroyed that email sometime between April and July 2006. The government made no allegation that Sterling ever entered Virginia during this period, much less destroyed the email there. In other words, there is no way Sterling should have been found guilty on that charge in Virginia (though it was easily the charge for which there was the most evidence to convict him of, had it been charged in Missouri). So that guilty verdict should make it easier to prove that the jury misunderstood the venue questions.
The other thing I think the defense might have grounds to appeal was Leonie Brinkema’s decision (which remains classified) that kept out details showing that several of the witnesses against Sterling — up to four of the people cleared into the Merlin operation — had, like Sterling, kept classified documents at home. One of the few concrete pieces of evidence against Sterling was that he had kept (probably retroactively) classified documents at home, which the government presented in big red printed SECRET folders. But, if (as seems highly likely) Bob S also did the same, it might raise questions about why FBI never investigated him as a potential source.
There’s much more that raises questions about the legitimacy (though not necessarily the outcome) of the trial, such as the things CIA managed to keep secret, including that the CIA had declared state secrets over some of the evidence submitted at trial to deprive Sterling of the ability to sue for discrimination.
And, finally, the verdict raises real questions about the economy of leaks in DC, in which people may point reporters to stories, only to have the reporters dig up damning evidence from other sources (which is what seems most likely to have happened here). Jeffrey Sterling just got found guilty for causing James Risen to publish a story to (the government claimed) avenge his crummy treatment by the CIA. Sterling’s guilty verdict allows no room for Risen to have decided to publish a story about CIA’s horrible record on WMD. This verdict will not only send Sterling to prison, but it turns journalists into agency-free vehicles of their sources.
The government engaged in a great deal of security theater during the Jeffrey Sterling trial, most notably by having some CIA witnesses — including ones whose identities weren’t, technically, secret — testify behind a big office divider so the general public couldn’t see the witness.
But along the way, the government revealed a great number of secrets, including a number of secrets about how its counterproliferation programs work.
Perhaps most ironically, in a trial aiming to convict Jeffrey Sterling for revealing that the Russian scientist referred to as Merlin during the trial was a CIA asset, the government revealed that Merlin’s wife was also an asset.
That possibility was first suggested in the testimony of the first witness, Stephen B, who described originally recruiting Mrs. Merlin (presumably also for information on Russia’s nuclear program), not Merlin himself. Merlin’s wife suggested CIA recruit Merlin.
But the exhibits make it even more clear that CIA continued to have a relationship with Mrs. Merlin as well. For example, the first of two cables describing CIA informing the Merlins the engineer appeared in James Risen’s book describes them as the “Merlin assets,” plural.
That January 6, 2006 cable goes on to reveal that Mrs. Merlin had been facilitating the targeting of a Russian official who was due to travel to the US.
In addition, a stipulation regarding how much the CIA paid out over the years described it as how much “CIA paid Merlin and his wife.” [my emphasis] Indeed, the payments continued after CIA purportedly had to discontinue using Merlin on operations when Risen threatened to publish a New York Times story in 2003, and continued even after Merlin appeared in Risen’s book in 2006, even increasing in 2007.
Altogether, the CIA paid the Merlins roughly $413,223.67 over the 7 years after James Risen supposedly ruined Merlin’s usefulness as an asset.
It’s possible that some of these amounts were just meant to keep the Merlins silent. Yet it’s also clear that in 2006, Mrs. Merlin was actively providing information on Russian targets to the CIA.
None of these details — including a listing of how much nuclear engineers might expect to be paid by the CIA for a thorough debriefing then participation in a deception operation — were made public by Risen’s book.
But in the government’s zeal to punish Jeffrey Sterling because it believes he revealed Merlin to the world, the government has, in turn, revealed Mrs. Merlin.
“Jeffrey Sterling was the hero of Risen’s story,” prosecutor Eric Olshan finished his closing argument in the Jeffrey Sterling trial. “Don’t let him be the hero of this one.”
“They are patriots,” prosecutor Jim Trump ended his remarks, speaking of the many CIA officers the jury had heard from. “They do their work without accolades.” He then compared Sterling with those patriots. “Sterling is not a patriot,” he described after accusing Sterling of betraying the CIA and his colleagues. “He is the defendant, he is guilty.”
Defense attorney Barry Pollack spoke in different terms — of the government’s insurmountable burden to present actual evidence that Jeffrey Sterling leaked national defense information to James Risen. Pollack warned of what a tragedy it would have been had the jury used the circumstantial evidence, presented by the government, that the word “Merlin” appeared on a computer Sterling used for 2 years to convict Sterling, when it turns out the word probably got there from its prior owner’s review of a piece of software called Merlin. “It would have been a tragedy” had the jury convicted Sterling based on that evidence, Pollack ended his presentation.
But along the way Pollack reminded whose story this is: James Risen’s, not Jeffrey Sterling’s, and the choices about how he presented Sterling, Bob S, and Merlin were made by him. The government, which pursued Risen’s testimony for 9 years, today presented the reporter as a mere vehicle for Jeffrey Sterling, a non-entity. Of course, no mention was made of Risen’s clear argument, in both the chapter (which the jurors will read) and the rest of the book (which jurors cannot read) that there were real reasons to be worried about CIA’s actions with respect to WMDs in both 2003 and still in 2006.
The government did a lot of good for their case in their closing arguments. Prior to today, their case was a mess, with their last witness, FBI Agent Ashley Hunt, admitting she had not even tried to gather evidence from some of the other possible sources for Risen, and had not succeeded for others. Olshan’s focus on citations from Sterling’s performance review was particularly compelling that Sterling had a role — albeit one that might have involved sharing entirely unclassified information — in Risen’s story.
Pollack did his best work pointing out that the evidence in CIA cables — particularly the timeline of meetings just before Merlin went to Vienna — suggested Merlin’s explanation for how a key letter appeared in Risen’s book did not make any sense. “There’s one problem [with Merlin’s story],” Pollack claimed. “It’s not true.” CIA cables showed that Merlin had not met alone with Sterling at the time he claimed he had, so it was impossible for Sterling to have gotten a copy of the letter in the way Merlin claimed he had. Pollack also took the government’s own narrative of Sterling’s calls with Risen, and showed where they had omitted the events in Sterling’s long-running equal opportunity and publication fights with the CIA, a perfectly innocent explanation for his calls with Risen.
There was almost no room in either story for challenging these narratives of heroism and betrayal. After all, if nuclear weapons are as serious as Olshan reminded the jury they are, then perhaps the concern about giving nuclear blueprints to Iran was itself a grave concern. Perhaps whoever leaked this story to James Risen as the country went to war in the name of WMDs that didn’t exist was him- or herself a hero. That was not submitted to the jury as a possibility.
Ultimately, though, it will come down to the story the jurors themselves craft to explain how a chapter that adopts a strong narrative voice — Risen’s voice — came to be, and whether they believe the government has presented enough evidence to prove Sterling was one of the many characters in the story of how investigative reporter James Risen publicized what the government claims was one of its closest held secrets.
Before this close, I would have guessed that there was no way the jury would find Sterling guilty; the government simply had not presented any evidence. It’s not clear their evidence is any more sound now, but they have told a story that may well resonate with the jury.
The FBI Special Agent who investigated the Merlin leak, Ashley Hunt, testified on Wednesday.
Much of the evidence she entered into the record pertained to the (remarkably limited) phone records between James Risen and Jeffrey Sterling between 2003 and 2007. While there were longer calls when Sterling lived in Missouri in 2004, before Risen went to the CIA with a story he claimed was ready to publish in April 2003, there were just a few minutes of conversation between Risen and Sterling.
One of the last things the government did while Special Agent Hunt was on the stand, however, was enter Stipulation 12, which entered phone records she had identified that took place between Jeffrey Sterling and another journalist. The records dated to around April 2003, but they were all very limited in length and some were even placed to the 800-number for the reporter’s newspaper.
The reporter in question was Ronald Kessler, who was then with the Los Angeles Times.
Kessler was also, at that time, finishing up a book, CIA at War (which would be released in October 2003), that according to the Senate Intelligence Committee Torture Report, was “blessed” by George Tenet and completed with the “assistance” of the CIA.
In seeking to shape press reporting on the CIA’s Detention and Interrogation Program, CIA officers and the CIA’s Office of Public Affair (OPA) provided unattributed background information on the program to journalists for books, articles, and broadcasts, including when the existence of the CIA’s Detention and Interrogation Program was still classified. When the journalists to whom the CIA had provided background information published classified information, the CIA did not, as a matter of policy, submit crime reports. For example, as described in internal emails, the CIA’s [redacted] never opened an investigation related to Ronald Kessler’s book The CIA at War, despite the inclusion of classified information, because “the book contained no first time disclosures,” and because “OPA provided assistance with the book.” Senior Deputy General Counsel John Rizzo wrote that the CIA made the determination because the CIA’s cooperation with Kessler had been “blessed” by theCIA director. [footnotes omitted]
The Senate Torture Report went on to enumerate the inaccurate information Kessler had reported that CIA officials were also spreading. The report also explained that CIA “cooperated” with another Kessler book in 2007.
In other words, over the period of at least 4 years that coincided with the Merlin investigation, Ronald Kessler was considered by the CIA to be one of the most amenable reporters to CIA propaganda, all the way up to George Tenet.
Kessler was, according to the Torture Report, a guy the CIA would reach out to to spread their propaganda.
And that’s the best the government could do as far as implicating Jeffrey Sterling in speaking with reporters other than James Risen.
After a week of ominous language about the dangers of leaking classified documents, the 14 jurors in the Jeffrey Sterling trial Tuesday got their first look at purportedly classified documents.
Martha Lutz, the CIA’s Chief of Litigation Support and the bane of anyone who has FOIAed the CIA in the last decade, was on the stand, a tiny woman with a beehive hairdo and a remarkably robust voice. After having Lutz lay out the Executive Orders that have governed classified information in the last two decades and what various designations mean, the government introduced four documents into evidence — three under the silent witness rule — and showed them to Lutz.
“When originally classified were these documents properly classified as secret,” the prosecution asked of the three documents.
“They weren’t,” Lutz responded.
“But they are now properly classified secret?”
“Yes,” Lutz answered.
A court officer handed out a packet of these same documents with bright red SECRET markings on the front to each juror (the government had tried to include such a warning on the binders of other exhibits, but the defense pointed out that nothing in them was actually classified at all). Judge Leonie Brinkema, apparently responding to the confused look on jurors’ faces, explained these were still-classified documents intended for their eyes only. “You’ll get the context,” Judge Brinkema added. “The content is not really anything you have to worry about.” The government then explained these documents were seized from Jeffrey Sterling’s house in Missouri in 2006. Then the court officer collected the documents back up again, having introduced the jurors to the exclusive world of CIA’s secrets for just a few moments.
On cross, however, the defense explained a bit about what these documents were. Edward MacMahon made it clear the date on the documents was February 1987 — a point which Lutz apparently missed. MacMahon then revealed that the documents explained how to use rotary phones when a CIA officer is out of the office. I believe the prosecution objected — so jurors can’t use MacMahon’s description in their consideration of how badly these documents implicate Sterling — but perhaps the improper description will help cue the jurors’ own understanding about what the documents they had glimpsed were really about, making it clear to them they’re being asked to convict a man because he possessed documents about using a rotary phone that the CIA retroactively decided were SECRET.
Along with these awesome secrets about rotary phone usage, the prosecution noted that Sterling also had a 1993 performance evaluation at his home in Missouri. Under cross, MacMahon got Lutz to correct her testimony that this PAR was not from when Sterling was a Case Officer — as she had originally explained — but from when he was a trainee. But Lutz insisted that the document would still have been secret if not redacted anyway because it would reveal the kind of trainees the CIA looks for.
You might be wondering how the government plans to use retroactively classified documents about rotary phones to convict Jeffrey Sterling for leaking details about an operation dealing nuclear blueprints to James Risen. Luckily, the government explained all that back in September 2011.
Remarkably, they argue that these documents seized from Sterling’s house in Missouri in 2006 are proof that he possessed classified documents in his house in Herndon, VA in 2003.
Although the uncharged classified documents were seized from the defendant’s residence in Missouri on October 5, 2006, the defendant had to have moved those documents from his residence in Herndon, Virginia to his residence in Missouri in August 2003. The defendant had no access to classified information while residing in Missouri, and no longer had access to any classified documents when the CIA terminated him on January 31, 2002.
Along with the FBI’s Agent’s hairdresser’s testimony, the government is offering these documents as “proof” that they’ve properly charged Sterling in Virginia and not, say, Missouri, where a judge is less likely to permit the government to wave around documents on rotary phones as if they’re an important secret.
The government also introduced these documents about rotary phone usage because — they readily admitted in that September 2011 motion — that they were forced to do such things because they only have a circumstantial case showing that Sterling had a letter that got leaked to James Risen absent the journalist’s testimony (they submitted that motion at a time when Brinkema had limited Risen’s testimony).
The evidence of the defendant’s possession of the seized classified documents is necessary because the letter charged in Counts Three and Five no longer exists. Absent Risen’s testimony, the evidence of the defendant’s possession of the letter charged in Counts Three and Five is solely circumstantial, based largely on inferences drawn from the defendant’s involvement in Classified Program No. 1, his access to certain CIA cables containing drafts of the letter, and the small number of individuals who would have had access to a paper copy of the letter.
In other words, they’ve submitted these documents Sterling obviously got in the very early days of his CIA career to “prove” that he also had snuck a letter on the Merlin program out of the CIA in 2000 (after which point he lost access to the information) and sat on it until 2003, when he allegedly shared it with Risen.
That the government is doing so makes it all the more ridiculous that a number of CIA’s witnesses — including up to four who were themselves cleared into the Merlin program — were able to testify without answering questions about the classified documents they improperly brought home. Given that the CIA actually learned of those documents in real time, it’s likely they were a lot more interesting than instructions on how to dial a rotary phone. And following the government’s habit of making fevered inferences, their improper treatment of classified information should make them more likely candidates to be James Risen’s source than Jeffrey Sterling.
But instead, the government is arguing, in all seriousness, that Jeffrey Sterling should go to prison because of three documents on dialing a rotary phone dating to 1987.
Here’s my latest on the Jeffrey Sterling trial from ExposeFacts.org:
Coming back into the courtroom after a break in the Jeffrey Sterling trial this afternoon, I heard an odd conversation. Apparently the government had unsuccessfully tried to get the defense to stipulate that the hairdresser for the FBI officer who had investigated this case had read James Risen’s book, State of War, in the Eastern judicial district of Virginia, where the court is located.
“There is no hairdresser privilege,” the judge presiding over the case, Leonie Brinkema, ruled.
So after a surprisingly weak presentation of computer forensic evidence, the government then called the investigating FBI officer’s hairdresser, who I will refer to as Julia P (because why shouldn’t she get the same privacy protections all the CIA’s witnesses got?). She seemed unprepared for court testimony, dressed casually. But she was a welcome breath of fresh air from all the stern witnesses preaching national security we’ve seen in the trial so far.
“Hi!” she said in a high voice as she took the stand. She explained she’d been a hairdresser for 35 years (she looked far too young for that to be the case). Julia P then confirmed that she had read State of War.
“Yessir, every chapter.”
She went on to confirm that she had read the book in Alexandria, VA shortly after it came out and that she does not have a security clearance.
The government, you see, is trying to establish they have charged Jeffrey Sterling in the proper venue. If anything has so far been presented that ties the alleged crimes to the Eastern District of Virginia, it’s not apparently clear what that is. It may be that the government had intended to use Risen’s testimony to establish venue in CIA’s home judicial district, but even there, he lives in Maryland and his office in is District of Columbia, as the government had just stipulated.
So they called the investigative Special Agent’s hairdresser.
And citing no precedent for this means to establish venue for an espionage case, the prosecution got Julia P to testify she had read a nationally released book that disclosed classified information in the same city where the trial is taking place.
Judge Brinkema then interjected, “how did you obtain the book?” It might have been either Borders or Barnes & Noble, Julia P explained. When pressed, she said it was probably in Alexandria or Arlington.
But it might have been in Bowie, Maryland, because her boyfriend lives there.
As Julia P pointed out, there are Barnes & Nobles all over.
On cross-examination, the defense asked her to clarify this, whether she knew where she bought the book. “It was probably Virginia, but it might have been Bowie,” she repeated. “You don’t remember whether you bought the book in Virginia or Maryland?” the defense asked again to be sure.
When she was dismissed, Julia P responded with the same refreshing voice, “Thank you!”
Note, of a fairly large jury pool, not a single potential juror had read Risen’s book. But to Julia P’s great credit, she has.
I’m anticipating that the venue jury instructions are going to be mighty interesting.