Did John Brennan Have a Role in DOJ’s Decision to Prosecute Jeffrey Sterling?

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John Brennan apparently plays an interesting role in the events surrounding Jeffrey Sterling, whom DOJ indicted for allegedly leaking details of the MERLIN program to James Risen.

James Risen first wrote about Sterling–profiling his employment discrimination suit–in March 2002. In it, Risen quotes then CIA Deputy Executive Director John Brennan, denying that Sterling was dismissed because he is black.

John Brennan, the deputy executive director of the agency who met Mr. Sterling several times about his case, said there was no evidence that racial discrimination had caused his problems.

”It was an unfortunate situation,” Mr. Brennan said, ”because Jeffrey was a talented officer and had a lot of the skills we are looking for, and we wanted him to succeed.

”We were quite pleased with Jeffrey’s performance in a number of areas. Unfortunately, there were some areas of his work and development that needed some improvement.”

Now Brennan’s role in negotiating with Sterling on the discrimination claims already provides one reason why Brennan might have a personal interest in seeing DOJ renew its pursuit of Sterling.

But there’s another: to go after Risen personally.

After all, whatever role Brennan had in Sterling’s discrimination suit, there’s no reason to believe it put Brennan at legal risk.

But Risen’s other big scoop in State of War did.

As I have shown, for at least a year, John Brennan was in charge of the process that picked who Dick Cheney would wiretap in his illegal domestic surveillance program.

Brennan appears to have overseen the units that conducted the threat assessments that were a key part of the illegal program from May 2003 at least until August 2004, and possibly up until he left ODNI in December 2005, just days before the NYT broke this story.For at least a year and possibly two, John Brennan appears to have been the guy inventing “reasonable cause” to wiretap people in the United States. John Brennan was also likely the guy who put together the list of groups considered al Qaeda affiliates (including al-Haramain) that could be wiretapped.

Of particular note, Brennan was in charge of this process when, after March 11, 2004, it operated without DOJ sanction, the time when it had the least legal cover (and the time period for which al-Haramain has proof they were illegally wiretapped). John Brennan is an accessory (at least) to violating FISA and other laws prohibiting domestic surveillance (including the part of 2004’s DOD appropriation bill that prohibited data mining of Americans).

And Risen’s reporting is what has ultimately led to the (very limited) exposure of Brennan’s role in the illegal wiretapping of Americans.

Mind you, the Deputy National Security Advisor probably shouldn’t be telling DOJ whom to investigate or not–particularly not if he’s trying to retaliate for the exposure of his own illegal actions. But he seems to have been right in the mix on the White House’s involvement in DOJ’s decisions on torture.

So did DOJ pursue this case so intently–as opposed to, say, torture and illegal wiretapping–at the direction of the White House?

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  1. MadDog says:

    Brennan was originally being considered by Obama for the position of CIA Director, but as you well know that was scotched due to Brennan’s less than spotless laundry.

    Some think that Brennan is now in fact the defacto head of US Intelligence with a brief that covers all the various agencies, but with the special bonus of being squirreled away under White House staff cover which shelters him from Congressional hearings and subpoenas.

    If the DOJ needs any direction and impetus to go after classified info leakers, one could easily imagine that the defacto head of US Intelligence would be a likely source to spur them on.

  2. WilliamOckham says:

    To add to ew’s questions, why now? Why was this indictment handed down now? Is there a statute of limitations issue? Something coming out from WikiLeaks that they want to get ahead of? The book was published 5 years ago. The grand jury was investigating by June 2006.

    • MadDog says:

      Josh Gerstein mentions this, but I’m unsatisfied:

      …It appears that the government waited to indict Sterling until the a resolution on the issue of Risen’s testimony, which had been in legal dispute for almost three years. The Justice Department, under President George W. Bush, first subpoenaed Risen in January 2008. That effort to call Risen apparently stalled out and prosecutors sought to reinstitute the subpoena last year after getting the approval of newly-confirmed Attorney General Eric Holder.

      Sometimes prosecutors who are fairly confident of the source of a leak will nevertheless seek confirmation by subpoenaing the journalist who received it. When subpoenaing then-NYT reporter Judy Miller, special prosecutor Pat Fitzgerald said he had a duty to try to confirm the source before taking legal action against any suspect, just in case Miller pointed to someone else. Prosecutors may have taken a similar course for similar reasons in the Sterling/Risen case…

      The reason I’m unsatisfied with Josh’s reason is that based on Josh’s own story that Risen’s lawyer says “Jim has not provided any testimony or cooperation of any kind to the government in conneciton with their investigation about the confidential source or sources of Chapter 9”, and if that is the truth, then the DOJ feels it can make its case without Risen.

      If evidence from Risen isn’t necessary, then why would waiting until resolution of the Risen legal dispute have any bearing?

  3. Mary says:

    Someone will have to timeline things out to see if there was a SOL ready to expire. Looking at the DOJ release it seems to sum up the charges in this way:

    The charges of unauthorized disclosure and retention of national defense information each carry maximum penalties of 10 years in prison. The charge of mail fraud carries a maximum penalty of 20 years in prison. The charge of unauthorized conveyance of government property carries a maximum penalty of 10 years in prison. The charge of obstruction of justice carries a maximum penalty of 20 years in prison. Each of these charges also carries a maximum fine of $250,000 or twice the loss or gain associated with the offense.

    I don’t know what the actual indictment has, but a mail fraud count would have a 5 year statute

    http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00968.htm

    18 USC Section 3282 is the general statute, and it is 5 years as well.

    The defense document stuff is 18 USC 793

    http://codes.lp.findlaw.com/uscode/18/I/37/793

    and I have no idea on the kind of quasi- espionagey charges under 18 USC 793 what the statute would be.

  4. MadDog says:

    Via the AP, I wonder if Sterling is now in for the Manning Detention Treatment:

    …Sterling, 43, of O’Fallon, Mo., was arrested Thursday and appeared in federal court in St. Louis later in the day. U.S. Magistrate Judge Terry I. Adelman told him he would be detained through the weekend because the government had declared him a danger to the community. There was no plea entered. Another detention hearing was scheduled for Monday afternoon…

      • MadDog says:

        I, too, am having a real hard time digesting Sterling’s being a “danger to the community”.

        Ummm…like how?

        It sure sounds more like punitive pre-trial detention to me. And perhaps a warning not to spill even more CIA dirty laundry.

        • MadDog says:

          Interesting CIA statement in the indictment pages 4–5:

          …10. On January 31, 2002, the day of his termination from the CIA, a CIA security officer read defendant STERLING the contents of another SCI Non-Disclosure Agreement and informed defendant STERLING of his lifetime ban against the unauthorized disclosure of classified information. Defendant STERLING refused to sign this Non-Disclosure Agreement. The CIA security officer informed defendant STERLING that the lifetime ban still applied despite his refusal to sign…

    • MadDog says:

      Sheesh, I’m back again already. *g*

      That AP article said this:

      …There was no plea entered…

      But this article from the St. Louis Post-Dispatch differs:

      …Sterling, in his court appearance, spoke only briefly to enter his not guilty plea and to answer questions by Magistrate Judge Terry Adelman, who scheduled a detention hearing for Monday at 2 p.m. Sterling will remain in custody until at least then, Adelman said, because the government considers him “a danger to the community…”

      (My Bold)

  5. MadDog says:

    Btw, I’ve been looking via Google, but no signs as of yet of a copy of Sterling’s indictment.

    Oops! It appears that Gawker has it here, but only as friggin’ JPGs instead of as a PDF.

  6. MadDog says:

    More interesting stuff from the indictment page 6:

    …15. Classified Program No. 1 was a clandestine operation program of the CIA. The purpose of Classified Program No. 1, which had been authorized and approved at the appropriate levels of government in the late 1990s, was to impede the progress of weapons capabilities of certain countries, including Country A…

    (My Bold)

    Who, other than Iran, were the other targeted countries? Pakistan? Libya? North Korea?

  8. MadDog says:

    EW, an additional item for your Sterling Timeline from the indictment page 9:

    …23. By on or about November 3, 2001 defendant STERLING disclosed classified information belongin to the CIA to Author A. Defendant STERLING in turn caused Author A to transmit and disseminate this classified information through a newspaper article via electronic mail and the United States mails into, among other places, the Eastern Distric of Virginia…

    (My Bold)

    Given the date of November 3, 2001, I wonder if the Feds grabbed this via the NSA warrantless surveillance driftnet program. Twas purely domestic traffic.

  9. MadDog says:

    More interesting stuff from the indictment page 10:

    …26. In or about February 2002, the defendant STERLING met with Author A, including at least one meeting at Author A’s office in Washington, D.C. One purpose of the meeting(s) was to discuss defendant STERLING’s civil litigation against the the CIA. Another purpose of the meeting(s) was to provide Author A documents relating to defendant STERLING’s employment at the CIA, including at least one redacted, unclassified document that referenced Human Asset No. 1, although not by name…

    A couple of questions arise:

    It sure sounds like the Feds had Author 1 (Risen) under surveillance, and perhaps even into his office. How else would they know what was taking place there? Though it could be something else like a previous email that described Sterling’s intentions for the meeting. Hard to read which.

    Second, I’m unaware that providing a “redacted, unclassified document” is a crime. How can that be relevant in the indictment?

      • MadDog says:

        Since the inception of the CIA, and even with its predecessor the OSS, it has long been standard operating procedure to “cover” CIA folks as “real” reporters.

        It would not surprise me if the CIA placed folks at the NYT. Whether such placement was known by NYT managment, one could argue that actions speak louder than words. *g*

        • CTuttle says:

          As I noted two threads down…

          …Risen contacted the CIA’s public affairs director to say that he planned to write a story about the classified program. That prompted U.S. government officials to meet with Risen and representatives of the Times about the “national security implications” of publishing such information. The Times never published Risen’s story. A senior government official familiar with the case told NBC that Condoleezza Rice, then national security advisor under President George W. Bush, was among those who urged the Times not to publish Risen’s information.

          No Foul…?

        • MadDog says:

          I rather think it was Godzilla meets King Kong.

          After getting their butt kicked by SCOTUS in the Pentagon Papers, I’m guessing the Feds have long been a wee bit gunshy of duking it out again with a heavyweight.

          As for flyweights like Assange and Wikileaks, that’s apparently a different bout.

          To the Feds, it’s probably a variation on Stalin’s quote: “How many divisions does the Pope Wikileaks have?”

        • CTuttle says:

          The Wikileaks are truly a weak cup of tea, one can readily sense the particular bias, in each and every one of our Ambassadors cables…! Our entire Foreign Policy Apparatchik is a fully-owned subsidiary of AIPAC/AEI/Heritage, ad nauseum Cartel…! We are so ill/misinformed on Global Affairs…! 8-(

    • lysias says:

      Any chance Human Asset No. 1 is Curveball?

      Or could he be one of the Iranian scientists mentioned in Risen’s book as denying that Iraq had any nuclear weapons program?

    • WilliamOckham says:

      I want to know how the CIA squares paragraph 27 (which states that the March 2002 did not appear to contain classified information) with all the redactions they made in Sterling’s lawsuits AND the state secrets claim they made to get the employment discrimination complaint thrown out.

  11. MadDog says:

    I will say this, after having read the entire indictment, that Julian Assange would have a helluva case if the DOJ attempted to indict him.

    There seems to be, according to the indictment, ample evidence (if we accept the DOJ information at face value) that the Author A (Risen) actively worked with Sterling to to acquire and then publish classified information.

    Author A (Risen) has not, and likely will not, be charged. Nor will the NYT.

    And I fail to see how the DOJ could make a case against Julian Assange and Wikileaks if they are not doing so against Risen and NYT.

    Prosecutorial discretion be dammned! Unequal treatment before the law is just that.

  12. MadDog says:

    Finally, Charlie Savage of the NYT reports on the Sterling indictment:

    Ex-C.I.A. Officer Named in Disclosure Indictment

    And an interesting comment in Charlie’s article:

    …Gregg Leslie, the legal defense director for Reporters Committee for Freedom of the Press, called the quashing of the federal grand jury subpoena in a criminal investigation “truly unusual,” saying he knew of no other such instance…

    • MadDog says:

      And an even more interesting comment from Charlie:

      …A Justice Department spokesman declined to comment about why Attorney General Eric H. Holder Jr. approved seeking a subpoena of Mr. Risen in light of the fact that prosecutors could obtain an indictment of Mr. Sterling without it.

      • MadDog says:

        And the bottomline interesting thing I took from Charlie’s article what how it appears that the NYT management “firewalled” Charlie from reporting on any internal NYT goings-on regarding this whole story.

  13. lysias says:

    Is any Alexandria jury going to convict a black nine-year CIA veteran like Sterling? (They have to allow blacks on the jury for the jury to pass muster in the appellate courts.)

    • emptywheel says:

      I imagine the govt will keep any details of his firing out of the case. And note that the govt invoked state secrets (though it appears they didn’t do it adequately the first time around) in the employment discrimination suit. So even if discussion of why he was fired comes up they’ll just say the reason is a state secret.

  14. nahant says:

    So did DOJ pursue this case so intently–as opposed to, say, torture and illegal wiretapping–at the direction of the White House?

    If it smells Fishy it is!

  15. CTuttle says:

    Incidentally, the Israelis are crowing about Merlin’s success…

    Deputy PM: West has three years to stop Iran nuclear program…

    …The United States and its allies have up to three years to curb Iran’s nuclear program, which has been set back by technical difficulties and sanctions, Deputy Prime Minister Moshe Ya’alon said on Wednesday.

    And the most recent blockbuster…

    Outgoing Mossad chief: Iran won’t have nuclear capability before 2015

    Meir Dagan tells Knesset committee that Iran’s nuclear program has been set back several years after a series of ‘malfunctions’.

  16. MadDog says:

    EW, and anyone else with an interest here, something from way, way out in left field struck me and I just had to post it for anyone’s consideration.

    Warning!!! Tinfoil hat is recommended! *g*

    A central question is why now? Why was Sterling indicted now?

    Bear with me here ’cause I’m heading into left field. *g*

    Another key question to me was what I commented on in # 5 above – why has the government “declared him a danger to the community” and ensured that Sterling won’t be let out of custody?

    Here’s my left field thought:

    What if both the timing of Sterling’s arrest and the insistence to the judge by the government that he is “a danger to the community” so he won’t be allowed out of custody ties into this:

    The ‘Fallout’ Of The CIA’s Race To Get Khan

    …They also allegedly worked for the CIA, which is accused of hampering a six-year Swiss federal probe into the family’s relationship with Khan by pressuring the Swiss government to destroy evidence in the case.

    “The CIA enlisted senior officials in the Bush administration … to begin to put pressure on the Swiss government to kill this investigation,” Franz says. “But two weeks ago, on Dec. 23, a Swiss magistrate announced that he had filed a report with the Swiss attorney general recommending charges against the three Tinners for selling nuclear equipment to Libya. … If they go to trial, all of this could come out in the open eventually, which would be absolutely fascinating.”

    I would hazard a guess that the role Sterling played in MERLIN was a piece in the larger puzzle that the CIA was running as a black op with the Tinners.

    What if Sterling was to be a witness in this Swiss magistrate’s case?

    What if the US government knew this, and wanted at all costs to prevent Sterling from testifying?

    What if the US government decided to play hardball with Sterling to convince him that testifying in the Swiss magistrate’s case was hazardous to his own freedom?

    What if the US government decided that telling the judge that Sterling was “a danger to the community” in order to grease the skids in a further order that Sterling surrender his passport because the government opines that he is a flight risk (likely I’d guess), and even potentially keep him in pre-trial confinement (less likely I’d guess)?

    And now off to count some sheep. If I’m lucky, I’ll only have to count a few. *g*

    • emptywheel says:

      I was going to draw a parallel with the Tinners, but I doubt he’s a witness in it. THe Tinners dealt with Pakistan. Though Sterling was working with others, his Farsi and the timing of his career would suggest a down-thread focus, so Iran.

      But I do think there’s a larger sensitivity on the part of the CIA about its counter proliferation efforts in the 1990s and 00s.

  17. WilliamOckham says:

    After having had some time to think about the indictment, I have some speculation to contribute. First, if you look closely, there’s really not much in this indictment other than a convincing (and possibly mostly true) story. There isn’t much in the way of really damning facts, just a lot of unsupported claims, circumstantial evidence and interesting suppositions. I suspect that they really needed Risen’s testimony to make the case, but when they didn’t get it, they moved ahead anyway because they had too much invested in the case.

    If they could prove everything in the indictment, especially the descriptions of Risen’s meetings with Sterling, it’s hard to imagine why the Risen subpeona was quashed. The type of evidence they have is email. I think there is going to be an interesting story behind how they got that. Any of the lawyers want to explain why they repeatedly said that the email was routed through servers in the Eastern District of Virginia?

    Look at para 37. The indictment asserts something that sounds believable, but really seems weak on closer inspection. There’s really nothing in the indictment to prove that Risen didn’t have other sources.