The Detainee Debate Heats Up: The Rule of Martial Law Vs. the Unitary Spookery

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As I noted yesterday, Obama issued a veto threat for the detainee provisions included in the Defense Authorization. Since then, both Dianne Feinstein and Carl Levin have given speeches on the floor, arguing against (DiFi) and for (Levin) the provisions.

And while I’d be happy to see the provisions in question fail (because the provisions represent a further militarization of our country), effectively the argument being made is between those (the Republicans, enabled by Levin) who support further militarization of law and those (DiFi and, especially, the Administration) who want the Executive Branch to continue fighting terrorism (and whatever else) with an intelligence-driven approach bound by few legal checks.

DOJ’s Special Forms of Extended Interrogation and Coercion

In a sense, DiFi’s speech on Thursday looked like an appeal to rule of law. For example, she warns of the danger of “further militariz[ing] our counterterrorism efforts.” But what she really focused on in her speech–implicitly–are the tools the government has wrung out of the civilian legal system to make it easier to get intelligence (whoever picked a Senate Judiciary Committee member to be head of the Senate Intelligence Committee made this blurring of law and intelligence easier).

DiFi alludes to tools DOJ has that DOD does not. She mentions both Najibullah Zazi and Umar Farouk Abdulmutallab as people whose prosecution within the civilian justice system aided prosecution.

Suppose a terrorist such as Zazi were forced into mandatory military custody. Then the government could also have been forced to split up codefendants, even in cases where they otherwise could be prosecuted as part of the same conspiracy in the same legal system.

[snip]

It was FBI agents who traveled to Abdulmutallab’s home in Nigeria and persuaded family members to come to Detroit to assist them in getting him to talk. The situation would have been very different under Section 1032. Under the pending legislation, it would have been military personnel who were attempting to enlist prominent Nigerians to assist in their interrogation, and Abdulmutallab would have been classified as an enemy combatant and held in a military facility and, therefore, his family would not be inclined to cooperate. This is we have been told on the Intelligence Committee.

She appears to be invoking the way we’re getting people to talk: by threatening and persuading their families. In the case of Zazi, we got him to cooperate by charging his father. In the case of Abdulmutallab, we presumably made some guarantees about treatment if his family would persuade him to cooperate (maybe that’s why he stayed in a minimum security prison through the pre-trial period; I also wonder whether we threatened his prominent banker father).

Most charitably, this is akin to the problem Ali Soufan experienced with Salim Hamdan; Soufan was about to persuade Hamdan to cooperate in exchange for a shorter sentence when DOD dumped Hamdan in Gitmo where there was no option to trade cooperation for better treatment. As the case of Omar Khadr (who was not permitted to spend time with other detainees after he plead guilty) makes clear, in military custody, we lose control of the conditions of someone’s confinement as soon as they plead guilty, and so can’t use that as a tool to get people to cooperate.

But there’s something else DiFi is not saying, though is out there. With our creative interpretation of Miranda of late, we have interrogated Faisal Shahzad for two weeks without a lawyer; Manssor Arbabsiar for 12 days; and Ahmed Warsame for a month. We got Arbabsiar (and, I would bet, Warsame) to cooperate to ensnare others during the period of pre-arraignment arrest. Thus, for better or worse, civilian detention has actually been offering the government more ways to deploy detainees in intelligence operations than military detention.

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Robert Mueller Once Again Claims Anna Chapman a Bigger Threat to US than Lloyd Blankfein

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Robert Mueller addressed the Commonwealth Club in San Francisco today. He repeated a familiar theme: the biggest threats to the United States are terrorists (even aspirational ones), spies, and cyber attacks.

Terrorism, espionage, and cyber attacks are the FBI’s top priorities. Terrorists, spies, and hackers are always thinking of new ways to harm us.

As he tends to do when spreading this propaganda, Mueller once again focused on Anna Chapman and her band of suburban spies.

Consider the arrest last year of 10 agents of the Russian Foreign Intelligence Service. Many of you may have seen TV news stories and videos covering the techniques we used in our investigation, code-named Ghost Stories. It featured the stuff of a John Le Carré novel—dead-drops in train tunnels, brush passes at night, and clandestine meetings in cafés.

Though he did add the example of Kexue Huang, who sent information on organic pesticides and food to Germany and China, to his list of scary spies who threaten our country.

Last month, Kexue Huang, a former scientist for two of America’s largest agricultural companies, pled guilty to charges that he sent trade secrets to his native China.

While working at Dow AgriSciences and later at Cargill, Huang became a research leader in biotechnology and the development of organic pesticides. Although he had signed non-disclosure agreements, he transferred stolen trade secrets from both companies to persons in Germany and China. His criminal conduct cost Dow and Cargill millions of dollars.

Finally, Mueller added a neat new twist to his list of people who pose a big threat to this country. The hackers who hacked into the BART website after BART cops killed the unarmed Oscar Grant and later Charles Blair Hill, and after BART shut down cell service to interrupt free speech will bring anarchy!

And “hacktivist” groups are pioneering their own forms of digital anarchy. Here in the Bay Area, you witnessed their work firsthand when individuals hacked the BART website and released personal data of BART customers.

Because it’s not anarchy when cops shoot unarmed or drunk men. It’s not anarchy when transit companies unilaterally shut down your phone. It’s only anarchy when the hackers get involved.

You’ll note what’s missing, as it always is, from Mueller’s list of scary threats to the country? Not a peep about the banksters whose systematic fraud has done–and continues to do–far more financial damage than 9/11.

It’s anarchy, apparently, when bunch of kids break into a website. But it’s not anarchy when banksters rewrite property law to steal the homes of millions of Americans.

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More FOIA Refusals Hiding DOJ’s Informant Practices

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The Center for Constitutional Rights is helping former Black Panther, community activist, and Common Ground founder Malik Rahim sue to get the FBI’s records on FBI informant Brandon Darby’s infiltration of Common Ground.

Today, the Center for Constitutional Rights (CCR), in collaboration with the Loyola Law School’s Clinic in New Orleans, filed a federal lawsuit against the U.S. Department of Justice and the Federal Bureau of Investigation demanding records related to Brandon Darby’s collaboration with the FBI during his involvement with Common Ground, a New Orleans relief organization that provided supplies and assistance in the aftermath of Hurricane Katrina and worked on rebuilding the New Orleans community from the ground up. Darby, who notoriously infiltrated protest groups at the 2008 Republican National Convention, co-founded Common Ground only to then infiltrate and disrupt the group. The lawsuit, filed in the District Court for the Eastern District of Louisiana on behalf of New Orleans community organizer and Common Ground Relief founder Malik Rahim, follows repeated unsuccessful requests by Mr. Rahim to have the FBI release documents detailing warrantless surveillance that he and other activists might have been subject to while working alongside Mr. Darby.

Darby’s work–and his work as an informant has been repeatedly documented (see also this report on the FBI file of Scott Crow, who started Common Ground with Darby and Rahim). But when Rahim tried to FOIA his own file in 2009, the FBI refused to turn over anything related to Darby’s work as an informant.

Plaintiff submitted, by letter dated February 24, 2009, and later amended on July 30, 2009, a FOIA request to Defendant FBI for all documents relating to Malik Rahim or his organization Common Ground Relief.

[snip]

Specifically, the FOIA request further sought “all records, documents and things . . . ” related to surveillance, investigation, use of informants and agents, planting or gathering “evidence,” and any other activities pertaining to Malik Rahim including anything related to Common Ground Relief and Brandon Darby.

On March 17, 2009, the FOIA request of Malik Rahim was denied on the grounds that the FBI would not respond to a FOIA request concerning another individual in addition to Malik Rahim without a “privacy waiver” being filled out by Brandon Darby.

On July 30, 2009, an appeal was filed to the denial. This appeal set out several reasons why the records should be made public, including: “the public right to be informed about what their government is up to,” citing U.S. Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 773 (1989); the fact that if Brandon Darby was an undercover informant for the FBI during his time at Common Ground, then that would be an act of such public concern that it would overcome personal privacy exemptions, citing National Archives & Records Administration v. Favish, 541 U.S. 157, 172 (2004). This appeal is attached.

[snip]

On September 25, 2009, the U.S. Department of Justice Office of Information Policy stated it was affirming the original refusal of the FBI to release any information pertaining to Brandon Darby and further affirmed the refusal of the FBI to neither confirm nor deny the existence of any records responsive to the request. They said: “Without consent, proof of death, official acknowledgement of an investigation, or an overriding public interest, confirming or denying the existence of the records your client requested would constitute an unwarranted invasion of personal privacy.”

The FBI response to Rahim’s FOIA is interesting on two counts. Rahim FOIAed for these records before Comac Carney ruled in the Islamic Shura Council FOIA case; the first denial, in which the FBI invoked privacy concerns, came before Carney’s June 23, 2009 ruling; the final denial came after it (remember it was two years before that ruling would be made public). But rather than excluding these files by pretending that no such files existed as they would under the Meese Memo, they responded using something like a Glomar response, “neither confirming nor denying” the records existed. And the denial is particularly odd given the hodge podge of reasons the FBI offered that might convince them to release the documents. Would Rahim get the same packet of documents, redacted the same way, if FBI released them with a privacy waver as they would with a public interest waiver?

One thing seems clear. The FBI is using all manner of dumb excuses to avoid handing over details of its infiltration of groups exercising their First Amendment rights. We can debate how they’ll respond under FOIA, but it’s clear their informant files exist.

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ODNI’s Response on Intelligence Oversight Board Shows Lack of Intelligence

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In September, I wrote about EFF’s efforts to find out whether Obama had an Intelligence Oversight Board–the board that’s supposed to provide some outside review over potential problems and abuses in the intelligence community.

ODNI has finally responded to EFF’s FOIA lawsuit.

And the results show a distinct lack of intelligence. Meaning, they’re kind of dumb.

There are three documents:

  • Biographies of David Boren, Chuck Hagel, and Lester Lyles, labeled “IOB Member,” “IOB Chair,” and “IOB Member,” respectively.
  • An email (presumably from a press person at the White House) informing the then PIAB General Counsel Homer Pointer that “the announcement” of seven new members of the PIAB–including Lyles–“had been made.” A notation in the corner lists “IOB Members: Hagel (Chair), Boren, Miles.”
  • An ODNI email discussing who, outside that office, should be invited to the DNI Holiday Reception, basically consisting of a list of PIAB members and staffers with “(Also IOB Co-Chair)” noted next to both Hagel and Boren’s names, and “(IOB member)” next to Lyles’.

Maybe I’m just being persnickety, but that appears to suggest ODNI doesn’t know whether David Boren is a Co-Chair of IOB, or just its third member.

And note that the name of the person who puts together James Clapper’s Holiday Party is a secret. Cause the terrorists will win if they know who sets up our intelligence community holiday parties, I guess.

Frankly, maybe the big question is not who the members of IOB are, but who the staffers are, because it appears that between December 2009 and October 2010, IOB got new staffers, seemingly replacing Homer Pointer (who had gone on the record several times complaining about the non-existent IOB) with Ray Heddings (who had worked at the Defense Threat Reduction Agency) as Counsel.

So while at one level, these three documents may tell us nothing. At another, they make me wonder whether the Administration’s solution to rising questions about the IOB was simply to replace the guy, internally, who actually cared?

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William Welch Appears to Commit Prosecutorial Misconduct. Again.

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DOJ has submitted its statement of issues it plans to appeal in the Jeff Sterling case. They are:

(1) Whether the district court erred in finding that author James Risen was protected by a “reporter’s privilege” and, therefore, could not be compelled to testify at trial as to the identity of persons who unlawfully communicated highly classified national defense information to Risen and as to other relevant matters regarding the receipt by Mr. Risen of that information;

(2) Whether the district court erred in ordering the disclosure to the defendant and jury of classified information regarding the identity of certain government witnesses (CIPA issue); and

(3) Whether the district court erred in striking the testimony of two government witnesses for the late pre-trial disclosure of potential impeachment information about these witnesses.

It was always likely they were going to appeal the James Risen subpoena.

And I noted here that the government was likely going to try to hide the identities of its CIA witnesses, even from Sterling, for all that would seem to violate the Sixth Amendment.

But then there’s what appears to be more of William Welch’s practice of withholding relevant material from defendants (Carrie Johnson first reported this aspect here).

While we don’t know which witnesses Leonie Brinkema has excluded, I think it possible that one of the witnesses in question was investigated, but not prosecuted, for leaking in the past.

Sterling moved to dismiss his case for selective prosecution on October 11, less than a week before the case was scheduled to go to trial. That’s obviously late to raise an issue like selective prosecution. That filing and a later response has not been redacted yet. But the government response makes it clear that Sterling complained about what appears to be another CIA officer who leaked classified information, but was not prosecuted.

The defendant claims that he was selectively prosecuted. At bottom, he alleges that because someone else was not prosecuted for the unauthorized disclosure of classified information, then he must have been selectively prosecuted.

[snip]

Here, prior prosecutors reviewed the circumstances surrounding Person A’s statements and concluded that Person A’s statements had been obtained in violation of Garrity v. New Jersey, 385 U.S. 493 (1967). Person A’s statements are the only evidence against Person A cited by the defendant. Person A had been interviewed a number of times by internal security investigators, and Person A had an employment obligation to cooperate with those internal security investigators. Failure to do so meant loss of security clearances and potentially loss of employment for Person A. Thus, the threat of loss of employment, whether implied through the loss of security clearances or express, supplied the requisite coercion to render Person A’s statements inadmissible, and Person A never waived any Garrity rights or executed any Garrity waivers prior to making the statements at issue. Thus, the situation of this defendant and Person A are starkly different, not similarly situated.

Given the late date of Sterling’s motion to dismiss, it seems likely he got information on this person about a month ago, which makes it likely he received it in late discovery.

In her most recent ruling (which she issued in sealed form the day before the CIPA conference at which the government announced it would appeal), Brinkema responded to Sterling’s selective prosecution attempt with this comment.

The defendant’s Motion to Dismiss Based on Selective Prosecution or, in the Alternative, to Take Discovery Related to Selective Prosecution [Dkt. No. 254] is unsupported by the facts before the Court and the law. Moreover, there is not enough time before the start of the trial to conduct further discovery.

Given her dismissal based on time considerations, I think it likely this may be the impeachment evidence: that at least one of the witnesses who would testify against Sterling had, in the past, leaked herself, and yet Sterling had not been given enough time to learn about the nature of this leak.

Gosh, it seems like just a few hours ago I was posting on the capriciousness with which our government treats leaks. And it seems like just days ago that I was recalling William Welch’s series of prosecutorial screw-ups.

You’d think that DOJ would start to get the idea that none of this stuff is cool.

Update: I made an error before. Sterling’s reply to the government’s response on selective prosecution was not sealed. Here’s one more detail that adds to the picture of his selective prosecution claim.

With respect to the Government’s first contention, as set forth in his motion, Mr. Sterling has made a detailed showing. Mr. Sterling showed that the conduct of Person A was more egregious, Person A was not prosecuted, Mr. Sterling had sued the CIA for discrimination, and Mr. Sterling was prosecuted.

So whatever Person A leaked, Sterling claims it was worse than what he is accused of leaking.

Also note, Sterling’s reply came on October 13, the same day Brinkema issued her ruling rejecting the selective prosecution. So it’s possible that Sterling’s lawyers raised this issue in the CIPA hearing the next day, which is when the government decided to appeal.

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Did the US Authorize Albright and Sanger to Publish the IAEA Iran Report?

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Partial screengrab from ISIS website showing link for IAEA Iran report.

Major media organizations around the world are reacting to the IAEA’s report on Iran’s nuclear technology.

Okay, anyone who reads my posts knows that the sentence above should include a link to the IAEA’s website and its posting of the original report. But I can’t include that link, because the IAEA hasn’t posted the report yet.  The report is posted (pdf) at the website for David Albright’s Institute for Science and International Security, where it showed up early yesterday afternoon, and at the New York Times (pdf), in association with a story by David Sanger and William Broad.  I believe that the Times copy was posted several hours after the ISIS copy.

The IAEA’s website has this information about the report, on a page with the heading “Report On Iran Nuclear Safeguards Sent to IAEA Board”:

An IAEA report on nuclear verification in Iran was circulated on 8 November 2011 to the Agency’s Board of Governors and the UN Security Council.

The Agency’s 35-member Board of Governors will consider the report at its next meeting in Vienna from 17 November 2011. The document’s circulation is currently restricted to IAEA Member States and unless the IAEA Board decides otherwise the Agency cannot authorize its release to the public.

The report, Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran, was issued by the IAEA Director General. It covers developments since the last report on 2 September 2011, as well as issues of longer standing.

Note that David Albright figured prominently in many media stories leading up to the appearance of the report.  He clearly had already read the report and was busy spreading his take on what the report means.

Given that Albright’s interpretation of the report fits so well with the Obama administration’s take, a question that comes to mind is whether the US authorized Albright to post the report. The IAEA information quoted above states that the IAEA is not authorized to release the report but that it was sent yesterday to the IAEA’s Board of Governors and to the UN Security Council.  The information also states that current circulation is “restricted to IAEA Member States”.  The US is a Member State of the IAEA.

Did the US authorize Albright’s release of the report? Read more →

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If Gun Walking Is Wrong, Why Isn’t Nuclear Blueprint Walking?

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In his statement before the Senate Judiciary Committee today, Attorney General Holder tried to stave off questions about Fast and Furious by asserting that “gun walking” is wrong.

I want to be clear: any instance of so-called “gun walking” is unacceptable.   Regrettably, this tactic was used as part of Fast and Furious, which was launched to combat gun trafficking and violence on our Southwest Border.   This operation was flawed in concept, as well as in execution.   And, unfortunately, we will feel its effects for years to come as guns that were lost during this operation continue to show up at crimes scenes both here and in Mexico.   This should never have happened.   And it must never happen again.

It’s a statement he repeated a number of times during the hearing.

The emphasis on the problems with the technique of letting illegal guns pass into Mexico to allow the ATF to trace straw buyers represents a shift in the way Democrats are dealing with the Fast and Furious scandal by looking at similar efforts made under Attorney General Mukasey.

For example, to undercut Darrell Issa’s efforts on Oversight, Elijah Cummings has asked him to include the earlier instances under Mukasey.

A briefing paper prepared for Attorney General Michael Mukasey during the Bush administration in 2007 outlined failed attempts by federal agents to track illicitly purchased guns across the border into Mexico and stressed the need for U.S. and Mexican law enforcement officials to work together on such efforts using a tactic that now is generating controversy.The information contained in one paragraph of a lengthy Nov. 16, 2007, document marks the first known instance of an attorney general being given information about the tactic known as “gun-walking.” It since has become controversial amid a probe by congressional Republicans criticizing the Bureau of Alcohol, Tobacco, Firearms and Explosives for using it during the Obama administration in an arms-trafficking investigation called Operation Fast and Furious that focused on several Phoenix-area gun shop

[snip]

Maryland Rep. Elijah Cummings, top Democrat on the House Oversight and Government Reform Committee, wrote to the panel’s Republican chairman, Darrell Issa of California, asking that he call Mukasey to testify about his knowledge of the program.

“Given the significant questions raised by the disclosures in these documents, our committee’s investigation will not be viewed as credible, even-handed, or complete unless we hear directly from Attorney General Mukasey,” Cummings wrote.

It’s nice our elected officials are coming to the conclusion that it’s not a good idea to intentionally deal guns directly to people with ties to drug cartels.

But then why is Eric Holder’s DOJ prosecuting Jeff Sterling for allegedly exposing CIA’s practice of dealing nuclear blueprints to Iran (while, at the same time, alerting them to the flaws in those blueprints designed to sabotage their nuclear program)?

After all, if selling guns to cartel members presents unacceptably high possibility for unintended consequences, doesn’t passing on nuclear blueprints to Iran present an even greater risk?

And if that’s true, and if DOJ agrees that the ATF officers who exposed this program are whistleblowers, then doesn’t it follow that Sterling allegedly was, too?

If, as the Attorney General himself maintains, Fast and Furious was “flawed in concept, as well as in execution,” then what distinguishes it from Merlin?

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The Implications of DOJ’s FOIA “Lies”

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On Thursday, we learned it has been the practice of DOJ for nearly a quarter century to provide misleading information in response to FOIAs asking for certain kinds of information–broadly, ongoing investigations, informants, and foreign intelligence.

In this post I want to consider how the practice may be ripe for abuse.

Here’s the statutory language in question, Section 552(c) of FOIA:

(c)(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) [ed: this is the law enforcement exception] and – (A) the investigation or proceeding involves a possible violation of criminal law; and (B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.

(2) Whenever informant records maintained by a criminal law enforcement agency under an informant’s name or personal identifier are requested by a third party according to the informant’s name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant’s status as an informant has been officially confirmed.

(3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1) [ed: this is the exemption for information that has been properly classified according to Executive Order], the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.

Let’s take each of these in order.

Ongoing Legal Investigation

The first exclusion–for information that might tip the subject of an investigation into a potential crime to that investigation and therefore lead her to, for example, destroy evidence–makes a bit of sense.

But it seems ripe for abuse in several ways.

First, DOJ can only exclude these files if “the subject of the investigation or proceeding is not aware of its pendency.” But DOJ gets to decide whether the subject of an investigation really “knows” she is being investigated or not. As the Meese Guidelines governing this practice explain,

Obviously, where all investigative subjects already are aware of an investigation’s pendency, the “tip off” harm sought to be prevented through this record exclusion is not of concern. Accordingly, the language of this exclusion requires agencies to consider the level of awareness already possessed by all investigative subjects involved as they consider employing it. It is appropriate that agencies do so, as the statutory language provides, according to a good-faith, “reason to believe” standard, which closely comports with the “could reasonably be expected to” standard utilized both within this exclusion and in the amended form of Exemption 7(A).

This “reason to believe” standard for considering a subject’s pre-existing awareness should afford agencies all necessary latitude in making such determinations. As the exclusion is phrased, this requirement is satisfied so long as an agency determines that it affirmatively possesses “reason to believe” that such awareness does not in fact exist. Read more →

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The Dangers of Hiring BAE’s Mercenaries

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How stupid was Moammar Qaddafi, who reportedly hired the same mercenary firm that tried to take out Equatorial Guinea’s dictator in 2004?

A total of 50 private soldiers, including 19 South Africans, are reported to have travelled to Libya on instructions to smuggle the former dictator from his birthplace of Sirte over the border to Niger.

Among them were said to be members of the team led by former SAS officer Simon Mann on the “Wonga coup” to unseat Equatorial Guinea’s dictator.

In addition to Simon Mann, after all, those plotters also had ties to Mark Thatcher, Maggie’s kid. And in addition to Sir Mark’s involvement with that coup attempt, Thatcher was involved in the BAE kick-back scheme with Saudi Arabia. And that scheme reportedly funded covert operations … presumably things like the Wonga coup. Led by the same Saudi family the head of which Qaddafi allegedly tried to assassinate.

Perhaps, after Qaddafi’s “secret” deal with Britain on the Lockerbie bomber, he thought he could trust the same mercenaries tied to a very British coup. Or perhaps he was just in a pinch and couldn’t get any more reliable mercenaries to help him escape Libya.

But it appears Qaddafi shouldn’t have trusted these particular mercs.

It has been alleged that one of the security firms who provided mercenaries for the mission may have acted as a “double agent”, helping Nato to pinpoint Gaddafi’s convoy for attack, and that the dictator’s escape was “meant to fail”.

[snip]

A source in the private security sector said it was “highly likely” that one of those involved deliberately recruited mercenaries who were ill-equipped to handle the mission.

“These guys did not have the experience to be successful,” he said. “The formation of the convoy, the way they tried to leave Sirte, it’s clear they were meant to fail.

“Someone got paid to protect him and at the same time to deliver him.”

Which makes it all the more interesting that Hillary was hanging out in Libya they day before Qaddafi was assassinated. I have noted how convenient it is that Qaddafi didn’t survive to testify at the ICC about how Ibn Sheikh al-Libi was suicided so conveniently; the same is true of his Lockerbie deal. I guess if you own the mercs “protecting” someone, it becomes a lot easier to arrange such convenient assassinations?

I guess dictators today can’t find mercenaries like they used to.

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Is DOJ Trying to Hide Valerie Plame at the Sterling Trial?

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While I was away in South Carolina, the government released the redacted copy of Leonie Brinkema’s order on several issues relating to the Jeffrey Sterling case (the government immediately appealed aspects of this ruling).

There are several interesting aspects of the ruling. First, Brinkema refused to let the government admit the talking points Condi Rice used to convince the NYT not to publish the Merlin story back in 2003 without Rice testifying herself. Although the ruling will probably have a negligible affect in this case, I nevertheless find it ironic, given that the government gave up prosecuting two former AIPAC employees when their defense attorney Abbe Lowell threatened to call Rice to testify about her A1 cutout habits.

Also, Brinkema is allowing the government to introduce a redacted copy of Sterling’s 2000 performance evaluation, presumably so they can argue that Sterling leaked the details about Merlin out of anger that his Equal Opportunity complaint went nowhere. I find this troubling. When that suit was litigated, the government declared state secrets over something, presumably the real performance review. Given the possibility the review referred to Merlin, it seems unfair to allow the government to use the performance review against Sterling without releasing the whole thing (if that is, in fact, what the government invoked state secrets over).

But I’m most interested in what Brinkema’s order suggests about the government’s effort to deal with CIA witnesses. The government, it appears, wants to keep the names of 10 former and current CIA employees who will testify secret from both the defense and the jury.

[T]he Court will hold in abeyance pending further briefing the Government’s request not to disclose, even under seal, to the defendant or jury the true names of these witnesses as they testify.

Brinkema’s planned approach–in addition to using screens to hide the witnesses, she plans to delay the time when potential jurors would get a list of potential witnesses–suggests these names might be publicly recognizable.

Specifically, asking potential jurors if they recognize the names of any witnesses will be delayed until a qualified pool of jurors is established and jurors stricken for cause have been excused from the courtroom. Then, as groups of jurors are considered for peremptory challenge, they will be shown an alphabetical list containing the full names of all witnesses, with no other identifying information. Any jurors recognizing a witness’s name will be stricken for cause. Because the witness list will contain the full names of many CIA employees whose identities the Government wants to protect, it will remain classified; however, a redacted list will become part of the public record.

Of course, this trial will take place in Northern Virginia; it’s quite possible that these CIA witnesses are neighbors or friends of potential jurors. And the government has a clear interest in preventing these potential jurors from learning that their neighbors are actually spooks.

But as the video above makes clear, at least one of the former CIA employees who might be called to testify, Valerie Plame, would be recognizable to a far larger group of people–those who even remotely followed the CIA Leak Case (I think Valerie would have been on maternity leave during the actual events described in Risen’s book). And this filing (see PDF 5-6)–an argument laying out Pat Lang’s proposed testimony refuting the government’s claim that the information Sterling allegedly leaked hurt the country–shows Lang read the FBI interview reports of 22 witnesses; the last name of two of those witnesses, one classified, one apparently not, starts with a “W.”

Mind you, I’m not suggesting the government doesn’t already have very good reason to want to hide the CIA affiliation of these 10 proposed witnesses–they do, which is part of the reason their case may be in trouble, since these witnesses will be used, in part, to prove Sterling’s alleged leaks were serious. Sterling has a clear right to confront his accusers, but the government wants to ensure he doesn’t even know their real names (this may be one of the things the government is appealing).

But I wanted to raise the possibility that they want to hide at least one of these identities not because the identity remains classified–Dick Cheney ruined that–but instead out of a desire to avoid confirming that Plame played a role in the Merlin operation.

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