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Stellar Wind IG Report, Working Thread

Charlie Savage has liberated the Stellar Wind IG Report completed on July 10, 2009. He wrote it up here. This will be a working thread. [Note page numbers here are off by 1]

(PDF 13) The report reveals that OPR had not yet finished its review of John Yoo’s hackery in authorizing the illegal wiretap program.

(PDF 13) The report was scoped only to include communications, so the financial and other collections would not be included.

(PDF 16/17) Discussion of USP metadata being masked.

(PDF 14) Wolfowitz, Card, Addington, Cheney, Ashcroft, Yoo, and Tenet refused to cooperate with the IG Report.

(PDF 15) IG Report says policy is only to disseminate foreign SIGINT. But actually that policy was changed in EO 12333 the previous year (almost certainly reflected the status quo before).

(PDF 17) DOJ redacted why Hayden didn’t think he could approve a law for this spying.

(PDF 16/17) Hayden talking about value of access metadata with one end in US.

(New PDF 18) Redaction with something before “international terrorism” in targeting permission.

(New PDF 18) Discussion of new dissemination permissions.

(PDF 19/20) They changed the title of the scary memo from one focused on OBL to a more general one in June 2002.

(PDF 25) Redaction of discussion of Fourth Amendment OLC memo.

(PDF 31) NSA decided only going out 2 hops useful.

(PDF 30/31) There were 3 metadata violations reported.

(PDF 32) The fact that the program released content analysis was not included in the unredacted IG Report. But this report still redacts at least one kind of reporting — which may be way the data feeds back into other analysis (they would redact that because it would create ongoing poison tree problems).

(PDF 33) “She noted Hayden took personal responsibility for the program and managed it carefully.”

(PDF 33) The description of the delegation hides a much more strained process as described in the NSA IG Report.

(PDF 34/35) Among the tasked selectors were “international terrorist threats” not tied to al Qaeda (and at a time before Somalia or AQAP would have been considered separately).

(New 35) Note the overcollection until 2004, “discovered” in late 2008, treated in IOB in 2009 (check). That may reflect the selectors against whom there was no RAS.

(PDF 36) The discussion of IOB records is cynically inadequate, for the reasons I lay out here.

(PDF36) Note the reference to collection continuing to 2004. This may be related to the hospital confrontation. Is this the Iraq-related collection?

(PDF 39) The tippers originally came in through TAU. Which means they likely got mixed up with exigent letters. The resulting ECs would come with instructions that they be used for lead purposes only and not be used in proceedings. That system likely still exists intact!

(PDF 40-41) Describes how tippers led to threat assessments (which Savage described in his article). On top of what this says about investigative process, realize it means that if your number gets tipped you also get a back door search of any communications.

(PDF 43) The discussion of the threat assessments neglects to mention that they used info derived from torture.

Read more

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

More Straws on US Financial Hegemonic Camel’s Back

Over the weekend, Juan Cole laid out how, if nuke negotiations with Iran fail this week, Europe is likely to weaken or end its sanctions anyway.

Iran-Europe trade in 2005 was $32 billion. Today it is $9 billion. There isn’t any fat in the latter figure, and it may well be about as low as Europe is willing to go. Tirone also points out that European trade with Iran has probably fallen as low as is possible, and that those who dream of further turning the screws on Tehran to bring it to its knees are full of mere bluster.

Arguably, Iran has simply substituted China, India and some other countries, less impressed by the US Department of Treasury than Europe, for the EU trade. Iranian trade with the global south and China has risen by 70%, Tirone says, to $150 billion. Indeed, at those levels Iran did more than make a substitution. It pivoted to Asia with great success before the phrase occurred to President Obama.

China is so insouciant about US pressure to sanction Iran’s trade that it recently announced a plan to expand Sino-Iranian trade alone to $200 billion by 2025. (It was about $52 billion in 2014). And Sino-Iranian trade was only $39 bn. in 2013, so the rate of increase is startling.

Cole notes — and quotes a British diplomat strongly suggesting — that the US may lack credibility because of the stunts by people like Tom Cotton.

Meanwhile, Dan Drezner assigned blame to both a an obstinate Congress and Obama for losing its allies to China’s Asian Infrastructure Investment Bank (the first domino of which I noted here).

The Obama administration has been reduced to backbiting U.S. alliesin the press — which, by the by, is a passive-aggressive habit that it really should stop. Newspapers articles, Economist leaders, and smart China analysts are all blasting the Obama administration on this issue. Indeed,most China-watchers advised the administration to join the AIIB six months ago on the logic that influencing it from within was a much smarter move than the course of action they actually pursued.

So, no contest, the executive branch screwed this up. But it would be selfish for the Obama administration to hog all of the credit on this policy failure. No, one of the main drivers behind China’s push for the AIIB has been frustration that Beijing’s clout at the IMF and World Bank has not matched its economic rise. The way to fix that has been quota reform to give China more power. As it turns out, the Obama administration negotiated that very thing five years ago.  All that was needed was for the U.S. Congress to pass it. And as I wrote two years ago:

If Congress stalls this quota reform measure that the executive branches from both parties have negotiated , they will be weakening a U.S.-friendly international institution and inviting potential rivals to set up or bolster alternatives. Which, if you think about, is a really stupid way to run U.S. foreign economic policy.

And hey, what do you know, Congress did that stalling thing.

These are just two straws on a still very big camel’s back. But slowly, US financial hegemony is getting weighed down by our hubris.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

Dick Cheney’s Foggy Memory on Bush’s Plausible Deniability for Torture

One of just three issues this Playboy interview [marginally SFW] with Dick Cheney pressed him on (the other two being whether Bush misjudged Putin and whether Cheney’s father loved him) was whether President Bush had been briefed on the torture program.

James Rosen starts by asking whether Bush was briefed on the actual methods.

You have become publicly identified with the so-called enhanced interrogation techniques that CIA officers used when questioning suspected terrorists. Your critics call those techniques torture. To your knowledge, was President Bush briefed about the actual methods that were to be employed?
I believe he was.

It would have been useful had Rosen actually read the SSCI Torture Report, because even that explains that Bush was briefed — in 2006. “[T]he president expressed concern,” the report noted, “about the ‘image of a detainee, chained to the ceiling, clothed in a diaper, and forced to go to the bathroom on himself.”

Rosen then presents the disagreement between John Rizzo and George Tenet, who have said Bush wasn’t briefed, and the President himself. Cheney responds by describing a specific, undated briefing in Condi’s office.

We ask because in Decision Points, the former president’s 2010 memoir, he recalls having been briefed on the EITs. Yet former CIA general counsel John Rizzo, in his 2014 memoir, Company Man, disputes that and says that he contacted former CIA director George Tenet about it, after reading the president’s book, and that Tenet backs him up in the belief that Bush was not briefed.
No, I’m certain Bush was briefed. I also recall a session where the entire National Security Council was briefed. The meeting took place in Condi Rice’s office—I don’t think Colin Powell was there, but I think he was briefed separately—where we went down through the specific techniques that were being authorized.

Rather than pointing out that Cheney doesn’t even say Bush was at that briefing in Condi’s office (or asking for a date, which I suspect is the real secret both Bush and the CIA are trying to keep), Rosen simply asks why Cheney is certain. He then raises James Risen’s account of Bush being given plausible deniability, which Cheney quickly turns into an assessment of whether Risen has credibility rather than providing more details on when and how Bush was briefed.

Why do you say you’re certain Bush was briefed?
Well, partly because he said he was. I don’t have any doubt about that. I mean, he was included in the process. I mean, that’s not the kind of thing that we would have done without his approval.

To that point, New York Times reporter James Risen wrote in State of War: The Secret History of the CIA and the Bush Administration, published in 2006, “Cheney made certain to protect the president from personal involvement in the internal debates on the handling of prisoners. It is not clear whether Tenet was told by Cheney or other White House officials not to brief Bush or whether he made that decision on his own. Cheney and senior White House officials knew that Bush was purposely not being briefed. It appears that there was a secret agreement among very senior administration officials to insulate Bush and to give him deniability.”
I don’t have much confidence in Risen.

That’s not the question. Is what he alleges here true or false?
That we tried to have deniability for the president?

Yes.
I can’t think of a time when we ever operated that way. We just didn’t. The president needed to know what we were doing and sign off on the thing. It’s like the terrorist surveillance program. You know, one of the main things I did there was to take Tenet and National Security Agency director Michael Hayden in hand and get the president’s approval for what we were doing, and there’s a classic example why I don’t believe something like this. The president wanted personal knowledge of what was going on, and he wanted to personally sign off on the program every 30 to 45 days. To suggest that somehow we ran a system that protected the president from knowledge about the enhanced interrogation techniques, I just—I don’t think it’s true. I don’t believe it.

I find Cheney’s invocation of the dragnet really, really interesting. After all, even according to Bush’s memoir, he didn’t know key details about the dragnet. Cheney told him it was going to expire on March 10 that day. Moreover, when Jim Comey briefed him the following day, he learned of problems that Cheney and others had kept from Bush.

Thus, Cheney’s invocation of the dragnet is actually a documented example of Bush not being adequately briefed.

Plus, it’s interesting given the timing. If I had to guess at this point, I would say that Bush was likely briefed on details of torture in 2004, in the wake of the Abu Ghraib scandal, not 2006. Indeed, that may explain the 7 week delay between the time Tenet asked for reaffirmation of torture approval and when it actually got fully approved — not to mention Tenet’s still inadequately explained resignation (in Tenet’s memoir, he says it was because of the “Slam Dunk” comment attributed to him in Bob Woodward’s book many weeks earlier).

Which brings us back to Cheney invoking a vaguely remembered briefing, this one in the Oval Office.

But can you say as a fact “I know that’s not true,” rather than having to surmise?
I can remember sitting in the Oval Office with deputy national security advisor Stephen Hadley and others—I think others were in there—where we talked about the techniques. And one of the things that was emphasized was the fact that the techniques were drawn from that set of practices we used in training our own people. I mean, we were not trying to hide it from the president. With all due respect, I just don’t give any credence to what Risen says there.

Cheney’s got nothing — or at least nothing he’s willing to share. And certainly nothing to document Bush being briefed before torture started.

Which is, again, what I suspect to be the issue: Bush was briefed, maybe even before the 2006 briefing the Torture Report documents. But not before the bulk of the torture happened.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

NSA Probably Doesn’t Have ALL of Hillary’s Emails … But Maybe Someone Should

I’m among those who believes Hillary Clinton’s use of a privately run email server is an abuse of power. Doing so appears to have skirted laws ensuring good governance and it may well have exposed her communications to adversaries (including some who would have reason to use the contents of her email to help Republicans win the White House), even if her email would have been just as targeted at State, per reports about persistent hacking of it. While I don’t buy — in the absence of evidence — she did so to hide ties with the Clinton Foundation, I do think she did so not just for convenience, but for control, as I laid out last week.

In response to the scandal, some people are calling on NSA to turn over Hillary’s emails (as they earlier did with former IRS official Lois Lerner).

For some Americans, the NSA isn’t an agency that protects them from terrorist threats or keeps this country safe from another catastrophic event. For many people, the NSA represents an intrusion of privacy. However, ‘Emailgate’ is an opportunity for the NSA to show Americans that it can protect the nation from possible security breaches, even when powerful members of government have made these errors of judgment. Nobody is accusing Hillary Clinton of anything treasonous or malicious, after all, Powell and Rice also used private emails at times. The primary concern with this scandal rests in the fact that private email servers were stored in a private residence, with their contents possibly being “sensitive” or “classified.”

If anyone in the country engaged in such behavior, the NSA would have likely had information on all of this citizen’s communication and activities. If  Clinton compromised national security in any way, the most renowned record-keeping agency in the U.S. government should help answer some questions. If the NSA has the full record of Clinton’s emails, it should hand them over to Congress.

There’s little reason to believe that NSA has all of Hillary’s emails — or even metadata on them — though it may well have (had) some.

We’re talking about emails from a non-PRISM US based server that are two to six years old.

Until December 2011, the NSA would have been capturing the metadata from all of Hillary’s email. But according to multiple documents (including sworn documents), NSA destroyed this data in 2011. NSA currently appears to collect US person Internet metadata from two other sources: from PRISM collection, and under SPCMA on data obtained overseas.

According to the 9-page explanation on the emails Hillary sent, “During her time at State, she communicated with foreign officials in person, through correspondence, and by telephone. The review of all of her emails revealed only one email with a foreign (UK) official.” Thus, while many of the people the Secretary of State would interact with could easily be targeted under Section 702, she claims she had email communication with only one of those legitimate targets, and that potentially legitimate target is from the UK, the least likely country to be targeted. This would mean that Hillary’s emails (and therefore metadata) would be unlikely to have been captured under PRISM collection. [Update: I realize now that any private conversations she had with foreigners could have been targeted and would not be among those she kept as official business.]

If she had used a targeted person’s identifier (email or phone number, for example), that might come up under upstream collection, particularly if she sent the email while overseas. The NSA has focused more since 2011 on sorting out the all US person communications captured in that way. But they also appear to go very far out of their way to avoid learning that communications are domestic, because that causes legal problems for them. So that would make it less likely they would ID these emails.

In other words, if NSA had collected Hillary’s emails using upstream collection, they should have destroyed them, and if they didn’t, they would now want to pretend they hadn’t collected them.

That leaves one other way the NSA might have some of Hillary’s emails (if they haven’t hurriedly destroyed them to avoid being caught having collected what would be considered domestic communications): via bulk collection overseas, which is quite possible, given how frequently Hillary would have been overseas, even in countries where the Five Eyes presumably pulls and keeps full take most of the time (though some of her emails sent both sides domestically might well have transited overseas and gotten collected).

By all means, let’s ask the NSA to search on her email identifiers to see what they’ve collected and retained for the 2-6 years in question! It would be a good test of how much “innocent” US person communications are collected incidentally, especially if that person travels frequently to targeted countries. (Though, again, I would imagine NSA has already done a purge to make sure they don’t have this, because if they got caught doing so, it would be … awkward.)

Finally, there’s one more reason to think NSA would not have Hillary’s email. As James Risen and Eric Lichtblau reported on June, 16, 2009 — just 3 months after Hillary started using this email — an analyst once got investigated for targeting Bill Clinton.

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

The former analyst added that his instructors had warned against committing any abuses, telling his class that another analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton.

As NSA explained to Congress the day after the report (this notice was attached to the Q3 2009 IOB report), this incident actually dated to 1992.

On November 3, 1992, an analyst wondering how foreign targets were reacting to Bill Clinton’s election typed in a query [redacted]. The query was made against the [redacted]. There were probably very few emails of any kind in there at that time, and there would not [sic] about Bill Clinton. Immediately after the query was entered, the co-worker sitting next to the analyst identified that this was a query on a U.S. person. The analyst immediately realized that the query was wrong and contrary to authorities.

[snip]

Although this activity occurred 17 years ago, we have used it in our oversight training, even in the last several years, as an illustrative example of queries that are inappropriate and must be reported and investigated. This type of query remains as inappropriate today as it was then and will not be tolerated under any circumstances.

In other words, up until no more than a few years before Hillary became Secretary of State, NSA used illegally querying on her husband as a training example. The server Hillary was using was (as far as I understand it) a Clinton Foundation server — a corporate entity tied to the man used as a training case on illegal targeting.

I’d say the centrality of Bill in NSA training would emphasize the importance of not targeting Bill, his property, and thereby his wife’s undisclosed email. Certainly from buffered collections (which is how NSA sorts full take collection overseas), it’d be less likely anyone would query anything that looked remotely like a Clinton email, even though almost all of Clinton’s foreign donors are likely targets.

Admittedly, a lot of Clinton Foundation emails might be kept for other reasons (and would be legitimately targeted based off their foreign interlocutor). But I would imagine NSA is particularly careful with anything that bears the name Clinton, because of this history.

In other words, while NSA almost certainly doesn’t have all Hillary emails, it might have some — but would have very very big incentives to be able to tell Congress it doesn’t if and when they ask.

Which is not to say someone shouldn’t have these emails.

One thing the recent 702 Minimization Procedures reveal are that all three agencies — NSA, FBI, and CIA — keep some data for a year to conduct security assessments. For example, FBI’s reads:

Similarly, and notwithstanding any other section in these procedures, the FBI may use information acquired pursuant to section 702 of the Act to conduct security assessments of its systems in order to ensure that FBI systems have not been compromised. These security assessments may include, but will not be limited to, the temporary storage of section 702-acquired information in a separate system for a period not to exceed one year. While retained in such a storage system for security assessments, such section 702-acquired information may not be accessed for any other purpose.

To be honest, I don’t understand this provision (as FBI.gov shouldn’t be collected under 702), though the provision may exist more broadly in SIGINT collection procedures, in which case it would seem utterly parallel to the CSEC practice of storing emails sent to the government.

But it seems if the government is retaining emails in the name of security of its own systems, it could also retain emails in the name of ensuring government abides by Federal Records rules. For top officials, who appear to keep changing their identifiers to prevent average citizens from being able to contact them (both Hillary and Eric Holder did this), identifying, retaining, and storing emails seems to have few privacy implications. So maybe NSA should have Hillary’s emails?

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 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 Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

What Was the CIA Really Doing with Merlin by 2003?

On June 26, 2003, CIA posted nuclear blueprints written in English on its website, claiming they were Iraqi.

On June 26, 2003, CIA posted nuclear blueprints written in English on its website, claiming they were Iraqi.

Bloomberg is reporting that the exhibits released in the Jeffrey Sterling case may lead the UN to reassess some of the evidence they’ve been handed about Iran’s alleged nuclear weapons program.

International Atomic Energy Agency inspectors in Vienna will probably review intelligence they received about Iran as a result of the revelations, said the two diplomats who are familiar with the IAEA’s Iran file and asked not to be named because the details are confidential. The CIA passed doctored blueprints for nuclear-weapon components to Iran in February 2000, trial documents have shown.

“This story suggests a possibility that hostile intelligence agencies could decide to plant a ‘smoking gun’ in Iran for the IAEA to find,” said Peter Jenkins, the U.K.’s former envoy to the Vienna-based agency. “That looks like a big problem.”

Importantly, this story comes from two IAEA officials who are familiar with the evidence against Iran, and therefore would know if aspects of the Merlin caper resemble things they’ve been handed by the CIA, almost certainly including the Laptop of Death laundered through MEK to the CIA in 2004.

You’ll recall that immediately upon hearing some of the sketchy details of the Merlin caper I thought of the Laptop of Death and a dubious tale, told by Iraqi nuclear scientist Mahdi Obeidi, involving the blueprints posted above. And I’ve only got more questions about the operation given what we learned since that day.

Here are some of those questions.

  • Why did CIA immediately turn to dealing Iraq nuclear blueprints after such a clusterfuck on Merlin’s first operation — and why wasn’t Sterling involved?
  • Why did both Bob S and Merlin tell the FBI in 2006 that Sterling was just a marginal player in the operation?
  • Did the program get more sensitive over time?

  • Why is the government claiming this part of James Risen’s State of War is as sensitive than his exposure of a massive illegal wiretap program?

  • Did the kind of deception involved change?

  • What was CIA intending with its Iran approach in 2003, and what really happened with it?

  • What explains the weird reception for Jeffrey Sterling’s complaint at the Senate Intelligence Committee?

  • Why was Bill Duhnke the top suspect?

Why did CIA immediately turn to dealing Iraq nuclear blueprints after such a clusterfuck on Merlin’s first operation — and why wasn’t Sterling involved?

As I have laid out, less than a month after Bob S deemed Merlin unable “to follow even the simplest and most explicit direction” (Exhibit 44), he and one other case officer who was apparently not Jeffrey Sterling (though Sterling was still nominally Merlin’s handler) approached Merlin about repeating the operation with another country (Exhibit 45). David Swanson has compellingly shown that that country was almost certainly Iraq. That operation, however, would be “rather more adventurous” than the Iranian op that Merlin had already proven so inadequate to.

I think it possible they bypassed Sterling because his Equal Opportunity complaints had already so soured his relationship with the CIA they had it in for him already. But I do find it interesting that the transition to Stephen Y happened right as they moved onto this “more adventurous” operation (and Stephen Y handled Merlin through this 2003 leak).

Why did both Bob S and Merlin tell the FBI in 2006 that Sterling was just a marginal player in the operation?

That Bob S was bypassing Sterling in April 2000, over a month before Merlin got a new case officer, also raises questions about why he and Merlin, in what seems remarkably similar testimony to the FBI in 2006, started saying that Sterling was not a central player in the operation. Bob S was doing 70% of the thinking on the operation, he reportedly told the FBI in an February 28, 2006 interview, Sterling just 30%. Sterling served only as a “middleman” editing his letters, Merlin told the FBI in an interview within a month after Bob S’. “The details of this operation were a wild forest to Sterling,” Merlin told the FBI in the same interview (though when asked on cross, he said he meant Sterling didn’t understand the technical details).

Why were Bob S and Merlin both so intent in the months after Risen’s book first appeared on insisting that Sterling’s understanding of the operation was incomplete?

Did the program get more sensitive over time?

Everything introduced at the trial treats the Merlin operation as a clandestine information collection operation. Yet a heavily redacted filing submitted in support of having Retired Colonel Pat Lang testify and other details from the trial suggest the operation got more sensitive as it went along. Like the contemporaneous cables, the filing suggests the operation was clandestine. “The [redacted] operation was conducted as a [redacted] clandestine intelligence operation.” But it also makes it clear that the government was trying to argue that this clandestine operation was covert. Note, for example, the discussion of CIA “electing” to notify Congress, obtain approval from the CIA Director, and … something redacted. That suggests the government went through some or all of the motions of the same kind of notice required under a Finding, without it being a formally covert operation. Risen may have been trying to get at this question, too, when he asked Bill Harlow’s counterpart somewhere (this wouldn’t have been at NSC, but it might have been at Sandia Lab), “he knew that President Clinton had approved the plan…but wanted to know if it had been reapproved by President Bush” (Exhibit 106; note, this appears to have been a seeded question, and not one that Sterling would have reason to pitch).

But two things suggest the program got, formally, more sensitive, perhaps even escalating to a covert operation that the US would want to deny. First, there are the two “facts” mentioned in the Lang filing that had not been shared with the defense, even though Lang was purportedly read into all the evidence pertaining to the Sterling defense. Then there’s an odd exchange that happened with Condi Rice. Eric Olshan asked “did everyone at the NSC know about this specific classified information?” (remember, within weeks, Bob S would tell the FBI more than 90 people were briefed into this compartment). Defense attorney Barry Pollack objected that the question was beyond the protective order. But Olshan insisted it wasn’t, and Judge Brinkema judged that “the government is very sensitive to the protective order and I doubt they would go beyond it.” The suggestion was that very few people at NSC were read into the precise details of the program when Condi talked NYT out of publishing in 2003.

All of this leads me to believe that the program had gotten much more sensitive between the time Sterling was booted off the program in 2000 and the time Risen was reporting the story in 2003.

If so, why?

Why is the government claiming this part of James Risen’s State of War is as sensitive than his exposure of a massive illegal wiretap program?

The program would have had to have gotten more sensitive over time, if any of the implications about the relative sensitivity of the chapters of Risen’s book — including the series of witnesses claiming Chapter 9 was the only one they read (though jurisdictional issues explain some of this, given that Risen’s NSA chapter came under MD’s purview) are to be believed.

After all, elsewhere in Risen’s book, he exposed a massive illegal wiretapping program that directly contravened FISA. He exposed a program that — we now know –directly implicated the Attorney General and Vice President in criminal wiretapping.

Yet the CIA and DOJ want us to believe that this program — described in contemporaneous CIA cables as an effort to give Iran a blueprint to find out if they wanted it — was more sensitive than that massive illegal program? (Admittedly this may all stem from the CIA thinking it is the center of the universe.)

Did the kind of deception involved change?

Those questions all make me wonder whether the kind of deception — and the audience — changed, if the project got more sensitive.

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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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

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

 

Screen Shot 2015-02-19 at 10.17.51 AM

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 Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

In War That Didn’t End, UN Finds Afghan Civilian Deaths Up 25% Over Previous Year

Washington has tried its very best to sweep the war in Afghanistan under the rug. Most of the press dutifully went along with the fiction of declaring the war to have ended in December. The military joined in, trying to classify virtually all information coming out of Afghanistan. That classification move has been backtracked somewhat, but we still haven’t seen a revised quarterly report from SIGAR with the newly released data.

For those who care about the truth of what is really taking place in Afghanistan as a result of the misguided US action, it is a good thing that Washington cannot stifle information flowing out of the United Nations Assistance Mission in Afghanistan. UNAMA has been tracking civilian casualties in Afghanistan since 2009, and their latest report was released today (press release is here and full report in pdf form is here). The news is not good at all. Deaths jumped by 25% from 2013, going from 2969 to 3699. Injuries also showed a sharp increase, from 5668 to 6849. These numbers simply do not comport with the rosy statements coming out of the Pentagon on what our troops in Afghanistan “accomplished”, how the Taliban are being defeated and how the ANSF are now “hugely capable”. Civilian casualties in Afghanistan have shown a relentless rise since the UN started collecting data:

UNAMA Civilian casualties 2014

It is harder to find data for the years leading up to 2009, but here is one report (pdf) in tabular form from Costs of War:

costs of war afghanistan 2001-2010

The figures from this report include only a subset of the types of death tracked by UN, accounting for the slight discrepancy in the years of overlapping data.

US military operations and continued presence in Afghanistan has been a disaster for civilians there. The insurgency which has arisen in response to the US presence is responsible for most of the casualties, but it is hard to see how these numbers would be as high if the US had simply left after deposing the Taliban in the first few weeks of the operation.

In addition to tracking casualties, the UN collects information on war crimes. Units of the Afghan Local Police are notorious in this regard (ALP most often are comprised of private militias that have been given a brief bit of training by US death squad trainers from JSOC and/or CIA). From the report:

For example, on 11 July, an ALP member shot and killed a local shopkeeper after an argument over ice. On 7 July, an ALP commander and four of his men assaulted (and injured) four civilians in Jorum district, Badakhshan province, during a wedding party. The reason for the beating was reportedly that the family had failed to provide food to the ALP as demanded.

UNAMA documented multiple examples of ALP intimidating and ordering the displacement of families from their communities. For example, on 12 October, ALP forcibly displaced 150-200 families from Khak-e-Safed district, Farah province. The ALP had warned the local population not to allow the Taliban to launch attacks from the village. The Taliban had also threatened the local population not to cooperate with the ALP. After Taliban fighters established positions in the area, the ALP ordered the 150-200 families to leave the area, resulting in displacement of an entire village, mainly to Farah city.

I would imagine that someone in Washington is busy today trying to find a way to prevent UNAMA from releasing its next report.

Many years ago, Jim got a BA in Radiation Biophysics from the University of Kansas. He then got a PhD in Molecular Biology from UCLA and did postdoctoral research in yeast genetics at UC Berkeley and mouse retroviruses at Stanford. He joined biosys in Palo Alto, producing insect parasitic nematodes for pest control. In the early 1990’s, he moved to Gainesville, FL and founded a company that eventually became Entomos. He left the firm as it reorganized into Pasteuria Biosciences and chose not to found a new firm due a clash of values with venture capital investors, who generally lack all values. Upon leaving, he chose to be a stay at home dad, gentleman farmer, cook and horse wrangler. He discovered the online world through commenting at Glenn Greenwald’s blog in the Salon days and was involved in the briefly successful Chris Dodd move to block the bill to renew FISA. He then went on to blog at Firedoglake and served a brief stint as evening editor there. When the Emptywheel blog moved out of Firedoglake back to standalone status, Jim tagged along and blogged on anthrax, viruses, John Galt, Pakistan and Afghanistan. He is now a mostly lapsed blogger looking for a work-around to the depressing realization that pointing out the details of government malfeasance and elite immunity has approximately zero effect.

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 Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 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.

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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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.