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.
Here’s my latest post from the Jeffrey Sterling trial at ExposeFacts.org, I describe how a top CIA officer — one who works in counterproliferation — used “curveball unironically,” even while presenting information that raised new concerns for me about Operation Merlin.
When Bob S, a longtime CIA operations manager working on Weapons of Mass Destruction described the ambiguity common on CIA operations as getting a “curveball” thrown at you in Wednesday’s testimony at the Jeffrey Sterling trial, he surely didn’t mean to reference the Iraqi fabricator who, under the pseudonym “Curveball,” lied about Saddam Hussein having mobile bioweapons labs, thereby playing a key role in CIA’s dodgy case to support the Iraq War.
Nevertheless, several people in the courtroom laughed that a senior CIA official working on WMD could ever use the term, Curveball, and not realize he was, at the same time, invoking one of CIA’s most embarrassing failures, one directly tied to Bob S’ work.
And while Bob S’ testimony made no mention of Iraq — at least not explicitly — his testimony did, at times, seem to confirm defense lawyer Edward MacMahon’s opening argument quip that the CIA was using this criminal case “to get its reputation back.” The better part of Wednesday’s testimony involved Bob S walking the court through one set of cables relating to the Merlin operation (though surely not all the ones pertaining to Zach W, the witness who lost his confidence when asked about Risen’s book on Tuesday), showing how slow and, the implication is, careful the operation was. At one point, as part of a very extended review of James Risen’s chapter on Operation Merlin stating which paragraphs Bob S claimed were true, which incorrect (though in some areas his claims about accuracy might be rebutted by the CIA cables), and which Bob S found to be “overstated,” the witness judged, “We have demonstrated that we did this very carefully.”
But even the timing of the operation raises questions about its efficacy. The CIA started this operation in summer 1996, at a time when (according to national lab scientist Walter C, who testified Wednesday) they believed Iran was a “nascent proliferator.” It took 9 months to reverse engineer a functional design from the intelligence a second Russian asset had provided, until April 1997. The national lab spent 8 months developing flaws and testing them, until late 1997. After that, a set of US experts “Red Teamed” the blueprints, looking for flaws; they only found 25% of the flaws but nevertheless were able to build something workable from the plans in 5 months, in May 1998. It then took over a year to get approval to use these things and get export control approval. There’s no reason to believe the Iranians could work as quickly as the US Red Team. Nevertheless, the US spent 3.5 years setting up the first offer for something that a Red Team was nevertheless able to use within 5 months.
Then there are really curious problems with the story, as told.
For example, according to Walter C and Bob S’ testimony, the CIA and national lab were very intent to build something that looked like a Russian schematic, complete with gaps in information that might arise from Russia’s compartmented nuclear development system (for some reason they had no concern that this would identify the other Russian asset involved in the operation, whose knowledge tracked that gap). In addition, purportedly, they were trying to hide that the Russian called Merlin at the trial — who had a post office box set up to correspond with potential targets, presumably in the US, and who emailed potential targets from the US — was in the US. In spite of both these details, however, they insisted on keeping the parts list — on what was supposed to be a Russian schematic reconstituted from a Russian lab — in English.
Under cross-examination Walter S admitted he had never seen a Russian schematic with English parts list. This led to a question from the defense about why the national lab had a Red Team whose sole job it was to find flaws in nuclear diagrams. “Why do you [meaning, presumably, the lab] have expertise in detecting flaws, all for deception?” The prosecution objected to this, the defense responded, “You opened the door,” but nevertheless Judge Brinkema sustained the objection after a lawyer’s conference. The CIA — or the nation’s weapons labs — have a system of Red Teams that test nuclear dodgy blueprints, but even though the government presented that information, the defense can’t force witnesses to explain why they have one.
The defense was more successful asking why the labs believed Iran had a fire-set program when, by 2007, the CIA judged (in a National Intelligence Estimate released to the public, though that was not explained to the jury) Iran had no nuclear weapons program. Expert Walter C said he was “only vaguely” aware of this assessment, which is rather incredible given the heated debate that ensued when the NIE judgement was released.
Within the context of the trial, perhaps this information didn’t raise real questions about what exactly the government believed it was doing (perhaps one of the plans was to give Iran a list of parts that intelligence agencies could then track the purchase of, which might be far easier to do if the parts are in the US). Perhaps all this (especially the unrebuttable claims about the accuracy of Risen’s reporting) is helping the CIA get its reputation back. But against the context of what else the public record shows CIA was doing at the time, it’s not clear how this restores CIA’s credibility on WMD.
For example, in late 2004, an officer also working in the counterproliferation division of CIA sued for wrongful termination, claiming that — starting in 2000 — his supervisors had ordered him to suppress intelligence because it conflicted with the Agency’s existing assessment of the country’s WMD program. While the earliest reporting on the suit — from none other than James Risen — made clear that some of this suppressed intelligence pertained to Iraq’s WMD program from the period leading up to the Iraq War, court documents filed after that 2007 NIE claim that the first report this former CIA officer’s supervisors asked him to suppress in 2000 pertained to Iran’s nuclear program, the same year as the Merlin operation.
Then there’s what has come to be known as the “laptop of death,” a laptop dealt to US intelligence in 2004 rather remarkably containing everything you’d need to claim Iran had a nuclear weapons program, including plans for a “detonation system.” Colin Powell rolled it out in 2004 as one of his last acts in the Bush Administration. Since then, the Iranians have been trying to prove it’s a fake, with increasing success of late. Nevertheless, that material has formed a significant part of the case supporting Iranian sanctions.
Finally, there’s another operation the CIA rolled out, in 2003, to “get its reputation back.” On June 25, 2003, on the evening before George Tenet had to testify to Congress about why the US had found no WMD in Iraq, CIA hailed the claims of an Iraqi nuclear scientist, Mahdi Obeidi, who claimed to have stashed a blueprint and working parts from an Iraqi centrifuge in a hole in his backyard since 1991. The story was riddled with internal contradictions, which didn’t stop Obeidi from having the almost unparalleled luck among Iraqi WMD scientists of settling in the vicinity of CIA headquarters. One of the oddest parts of Obeidi’s story is that the blueprints, purportedly developed in Iraq by Iraqis from German plans — which CIA briefly posted on its website, then took down — were in English.
On April 30, 2003, less than two months before CIA would roll out those nuclear blueprints in English (and at a time when US government officials were already working with Obeidi), Condoleezza Rice called New York Times‘ editors to the White House and persuaded them not to publish Risen’s story about Operation Merlin, in which (we now know) a Russian parts list rather curiously written in English were dealt to Iran back in 2000. Rice actually went further; she asked Times editor Jill Abramson to make Risen stop all reporting on this topic.
Which brings us to one more detail presented on Wednesday that may not actually help CIA get its reputation back. In 2011, the government hinted that the real problem with Risen’s story was that other US adversaries would learn that CIA was fronting a Russian scientist to deal them dodgy blueprints; Risen’s book does suggest the plan may have been used again. In testimony on Wednesday, Bob S confirmed that. This top counterproliferation official revealed that between 2001 and 2003, CIA had used the Russian dubbed Merlin to approach “other countries believed to be interested in WMD.” More troubling still, a March 11, 2003 cable introduced into evidence revealed that — after Iran had not taken the bait at all back in 2000 — CIA had started to try again with Merlin to reach out to Iran. In 2003, at a time when many worried an invasion of Iran would quickly follow the dodgy imminent invasion of Iraq, the CIA attempted to dump flawed nuclear blueprints into Iran’s hands via their asset, Merlin.
None of these other details will be presented to the jury, and even key details like the NIE judgment won’t come in as evidence with enough context for it to affect the jury’s deliberations in this case. But the way in which newly-revealed details about how Operation Merlin resonates with other dubious CIA claims made around the same time does present another likely motive, aside from the motive of revenge the government claims animated Sterling, to explain why leakers might go to James Risen in 2003 with concerns about the CIA operation.
In Risen’s affidavit to this court fighting his subpoena, he said he “made the decision to publish the information about Operation Merlin” because the case against Iraq “was based on flawed intelligence about Iraq’s non-existent weapons of mass destruction, including its supposed nuclear program.” He cited a 2005 report that “described American intelligence on Iran as inadequate to allow firm judgments about Iran’s weapons programs.” And he noted the “increasing speculation that the United States might be planning for a possible conflict with Iran, once again based on supposed intelligence concerning weapons of mass destruction.” Clearly, in Risen’s mind, this Iranian operation might tie into what he was learning and reporting about the Iraq debacle.
Again, none of this is likely to help Jeffrey Sterling. As Judge Leonie Brinkema noted yesterday, all the government has to do is prove Sterling is one of Risen’s sources, regardless of however many other sources he might have, motivated for whatever reason.
But the CIA seems to believe this tediously presented information helps it get its reputation back, helps explain the operation that appears so dubious in Risen’s book.
For listeners who know the full extent of CIA’s dodgy record on WMD, it does not.
I’m covering the beginning of the Jeffrey Sterling trial this week with ExposeFacts.org. This post lays out the opening arguments from yesterday, showing how circumstantial the government’s case is. More interesting, if I do say so myself, is this post on how one of the CIA officers who testified yesterday started losing his cool as matters got to James Risen’s book.
Zach W — the third CIA officer, who played a key role in setting up Operation Merlin before he handed the Russian off to Sterling — came off less impressively. Because the public had no visual cues because he (like the other two officers) testified behind a screen, his voice and overly-helpful answers recalled Vizzini, the Princess Bride character who dies in a battle of wits. The government used Zach W to explain how Operation Merlin came about, to get him to deny having spoken with James Risen, and to disclaim any concerns about the operation, But on cross-examination, he hurt the government’s case in three ways:
- He presented contradictory evidence about the Russian’s knowledge of the blueprints dealt to Iran
- His demeanor started crumbling when the defense pointed out where he’d fit in Risen’s book
- The defense demonstrated that in both functional position and language, Zach W was a closer fit to the focalization and language used in Risen’s book than Sterling is
Zach W’s demeanor started as very confident and overly helpful. He always answered “yes” or “correct” to questions, and at one point got ahead of the prosecution’s questions, leading the defense to object. As someone who had been in the CIA since the 1980s, he had the air of telling how hard things used to be before Google.
But his confident demeanor started crumbling soon after the cross examination started. The government had ended its questioning by asking if he knew Risen. “I know who he is, I never talked to him,” Zach W answered. When asked again if he had ever talked to him, he answered, no, twice.
Then under cross-examination, the defense got him to repeat his description of how he worked with the Russian to make himself available to Iranians by sending letters. When Zach W was asked if he sent the Russian to conferences, he said he was reluctant to say without material in hand to check. The defense then asked when he read the book. Zach W sighed audibly. They walked through the passage describing a case officer working with the Russian to reach out to the Iranians. In response to a question about that, Zach W answered, for the first time, “mmm hmmm.” “I’m sorry, you have to say yes or no,” Judge Brinkema responded. You are that case officer being referenced, the defense asked. “To some degree it does,” Zach W responded, “it seems more precise in targeting, just saying.”
Then the defense led Zach W through how the blueprints were discussed, either as “blueprints,” “firing set,” or “fire set” in the CIA cables and the book. “Firing set is something you’d use,” the defense asked after getting Zach W to say he didn’t know how the Russian described the part. “That’s what we were talking about,” Zach W responded. The defense pointed to another instance, “fire ring set.” For the second time, Zach W answered, “mmm hmmm.” “You have to say yes or no,” Judge Brinkema reminded again.
After laying out all the cables Zach W had written that use the same language that appears in the book, the defense then turned to the cable Zach W wrote about the meeting in San Francisco. He pointed to the description of Sterling, the Russian, and his wife, going to wine country. This was something the prosecution had said only Sterling knew about. When asked if the cable talked about wine country, Zach W once again answered “mmm hmmm.”
Today’s main witness, Bob S, tried to explain that Zach W would have had no way of knowing that the wine country trip went to Sonoma, though (as I’ll write later) he was not at all credible on that front.
Thus far, the government’s main witnesses aren’t coming off all that impressively.
Just when Kevin Drum declared the “Friday News Dump” dead, comes proof news of said death was greatly exaggerated.
As Josh Gerstein and others have reported, the plea will be entered this afternoon:
Under the terms of the agreement, Kim will plead guilty to a single felony count of disclosing classified information to Rosen in June 2009, and serve a 13-month prison sentence. Judge Colleen Kollar-Kotelly would have to accept the sentence or reject it outright?, in which case Kim could withdraw his plea. Kim would also be on supervised release for a year, but would pay no fine.
Judge Kollar-Kotelly is expected to accept the guilty plea at today’s hearing, but will not impose a sentence until sometime later.
Well, that is kind of a big deal dropped out of nowhere on a Friday afternoon.
As you may recall, this is the infamous case where the Obama/Holder DOJ was caught classifying a journalist, James Rosen of Fox News, as an “aider and abettor” of espionage. As the Washington Post reported, the scurrilous allegation was clear as day in a formal warrant application filed as an official court document:
“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.
The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.
The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.
As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.
“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”
“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”
Of course, the fully justifiable uproar over the Rosen treatment by DOJ eventually led to “new guidelines”, being issued by the DOJ. The new guidelines are certainly a half step in the right direction, but wholly unsatisfactory for the breadth and scope of the current Administration’s attack on the American free press.
But now the case undergirding the discussion in the Stephen Kim case will be shut down, and the questions that could play out in an actual trial quashed. All nice and tidy!
Frankly, I have mixed emotions about the reported Kim plea itself. It is, all in all, a pretty good deal for Kim and his attorney, the great Abbe Lowell. The case is done, bad precedent does not get etched into a jury verdict and appeal, and the nightmare has an end in sight for the defendant, Stephen Kim. All things considered, given the seriousness of the espionage and false statement charges in the indictment, 13 months is a good outcome. And it is not a horrible sentence to have as a yardstick for other leakers (were I Ed Snowden and Ben Wizner, I would like this result). By the same token, the damage done by the ridiculous antics and conduct of the DOJ in getting to this point is palpable. It will leave a stain that won’t, and shouldn’t, go away.
That still leaves the matter of Jeffrey Sterling, and reporter James Risen, though. Whither DOJ on that? And it is an important question since the much ballyhooed and vaunted “New Media Policies” announced by DOJ left wide open the ability to force Risen (and others that may some day be similarly situated) to testify about his sources of face jail for contempt.
The Fourth Circuit — which covers CIA, JSOC, and NSA’s territory — just ruled that journalists who are witnesses to alleged crimes (or participants, the opinion ominously notes) must testify in the trial.
There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.
With this language, the Fourth applies the ruling in Branzburg — which, after all, pertained to the observation of a drug-related crime — to a news-gathering activity, the receipt of classified information for all the states in which it most matters.
The opinion goes on to echo DOJ’s claims (which I recalled just yesterday) that Risen’s testimony is specifically necessary.
Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.
There is no dispute that the information sought from Risen is relevant. Moreover, it “can[not] be obtained by alternative means.” Id. at 1139. The circumstantial evidence that the government has been able to glean from incomplete and inconclusive documents, and from the hearsay statements of witnesses with no personal or first-hand knowledge of the critical aspects of the charged crimes, does not serve as a fair or reasonable substitute.
Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information. And it was through the publication of his book, State of War, that the classified information made its way into the public domain. He is the only witness who can specify the classified information that he received, and the source or sources from whom he received it.
Clearly, Risen’s direct, first-hand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony.
This language will enhance the strength of the reservation DOJ made to its News Media Policies, allowing it to require testimony if it is essential to successful prosecution.
The only limit on the government’s authority to compel testimony under this opinion is if the government is harassing the journalist, which (with proof of the way the government collected phone records, which remains secret) might have been proven in this case. There is a strong case to be made that the entire point of this trial is to put James Risen, not Jeffrey Sterling, in jail. But Leonie Brinkema has already ruled against it. I think the subpoena for 20 AP phone lines might rise to that level as well, except that case is being investigated in the DC Circuit, where this ruling doesn’t apply.
This pretty much guts national security journalism in the states in which it matters.
Golly. It was just last week when the press believed DOJ’s News Media Guidelines would protect the press’ work.