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James Gordon Meek and Merrick Garland’s “Suspect Exception”

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According to a discovery response letter sent on April 7, the government had only been able to access one of four laptops it seized from investigative reporter James Gordon Meek’s house when it searched his home for Child Sexual Abuse Material a year ago.

The government has not been able to access evidence item 1B4 and has not relied on any content from that device in its charges against your client. The laptop referenced in the complaint is evidence item 1B6. That item is and has been available for your review at the FBI facility, and a copy of the data was provided for your visit on March 16.

The government did seize four laptops from Mr. Meek. Those items are labeled 1B3, 1B4, 1B5, and 1B6. At this time, the government has only accessed 1B6.

The letter was made available as part of a motion to compel discovery filed last week.

That detail came in response to a question about why, when Meek’s legal team conducted an evidence review at the FBI on March 16, they were not able to access one of the laptops.

During our evidence review at the FBI on March 16, 2023, we were not able to review the contents of the laptop seized from Mr. Meek (item 1B4). Three of the data volumes appeared to still be encrypted. Our expert asked CART Gabriela Mancini about this issue, and Ms. Mancini explained that the laptop had not been “processed.” We noted that the government stated in the complaint affidavit that the FBI recovered 90 CSAM items from the laptop. It is unclear how this was done without processing the laptop.

[snip]

Furthermore, it is my understanding that the government seized a total of four laptop computers. Can you please confirm that 1B4 is a MacBook laptop, and the status of the other seized laptop computers?

These three still unexploited laptops are of some interest given the questions Meek’s (refreshingly competent, given what I’ve become used to from many of the January 6 lawyers) attorney Eugene Gorkhov raised in the MTC about how DOJ treated Meek as a journalist.

Most of the issues in the MTC are just competent lawyering: demanding more details about how the investigation into Meek moved from a DropBox tip to the National Center for Missing and Exploited Children to the Virginia State Police to the Arlington County Police to the FBI, and asking for evidence that the leaks to the press detailing aspects of the investigation show bias. Those questions are likely fairly easily explained (or blown off). If they’re not, they’ll provide leverage at trial, if not reason to dismiss the case.

It’s how DOJ treats a journalist when investigating him for suspected crimes entirely unrelated to his journalism that is of interest in this MTC.

Gorokhov describes receiving notice that DOJ used a filter team, both in advance of his April 2022 search and — presumably — in advance of investigating materials obtained with a warrant served on a cloud provider, back in November 2021. But DOJ refused to share the filter protocol.

In its search of the electronic devices seized from Mr. Meek’s residence, the government accessed Mr. Meek’s newsgathering materials, including communications, sensitive confidential sources, and work product. The government stated that it employed filter procedures while carrying out these searches. The discovery materials reference filter team memoranda dated November 24, 2021 and April 22, 2022. The defense has requested copies of these memoranda, Ex. 4 at 6, but the government has refused to provide them, claiming that they are work product and that, in any event, Mr. Meek has no reporter’s privilege because no such privilege exists. Ex. 5 at 5. Mr. Meek has also requested documentation relating to requests to, and approvals by, senior DOJ officials19 in connection with the search warrant applications in this case or any other investigative steps in this case. Ex. 4 at 7. The government has refused to produce this material. Ex. 5 at 5.

Gorokhov asks how that’s consistent with its media policy, particularly given the 2021 report on legal process used with journalists. He suggests Meek shows up twice there — first, in a subpoena approved by the Assistant Attorney General served on a media outlet (presumably ABC) to identify who accessed a particular news article, then Deputy Assistant Attorney General approval under a “suspect exception” before obtaining the first warrant targeting Meek.

Mr. Meek has also requested documentation relating to requests to, and approvals by, senior DOJ officials19 in connection with the search warrant applications in this case or any other investigative steps in this case. Ex. 4 at 7. The government has refused to produce this material. Ex. 5 at 5.

The government’s own policies and actions belie its position that Mr. Meek’s newsgathering materials are entitled to no protection. If this were true, then why did the government claim to implement filter procedures? Additionally, why did the FBI agents at the search ask Mr. Meek to identify devices containing newsgathering materials? The DOJ’s own policies reflect the recognition that newsgathering materials are entitled to protection: “The Department recognizes the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their Government.” 28 C.F.R. § 50.10(a)(2). To be sure, the DOJ’s policies provide more protection in circumstances where newsgathering activities are the subject of investigation, but the need to protect such information is recognized by the DOJ even in instances where the investigation is unrelated to newsgathering activities. See, e.g., 28 C.F.R. § 50.10(d)(2) (requiring authorization of Deputy Assistant Attorney General for the Criminal Division prior to issuing compulsory process to a member of the media for conduct unrelated to newsgathering); 28 C.F.R. § 50.10(o)(4) (“Members of the Department should consult the Justice Manual for guidance regarding the use of filter protocols to protect newsgathering-related materials that are unrelated to the conduct under investigation.”).

19 See Ex. 6, Annual Report: Department of Justice Use of Certain Law Enforcement Tools to Obtain Information from, or Records of, Members of the News Media; and Questioning, Arresting, or Charging Members of the News Media (Year 2021). The publicly available report indicates that in 2021, the Deputy Assistant Attorney General authorized a search warrant for an online account of a journalist in connection with a child exploitation investigation. The same report also states that “the Assistant Attorney General for the Criminal Division authorized the issuance of a grand jury subpoena to a news media entity in order to obtain IP address information for computers that accessed a particular online news article during a specified narrow timeframe.” The government has provided no records reflecting the latter investigative activity by the FBI, and

I highly doubt that Meek will get anywhere with this challenge for the legal reasons DOJ gave in its reply. There’s no reporter’s privilege, especially not in the Fourth Circuit, and especially not when a reporter has committed the offense at issue.

Your client has no reporter’s privilege in any way relevant to this case. The Fourth Circuit— following the Supreme Court—has declined to recognize a privilege for reporters in criminal proceedings even when the reporter is merely a witness to a crime. See United States v. Sterling, 742 F.3d 482 (4th Cir. 2013) (citing Branzburg v. Hayes, 408 U.S. 665 (1972)). There is no basis for the assertion of any such privilege when the reporter has himself committed the criminal offense, and even less so where, as here, the crime is unrelated to his newsgathering activities. That the government voluntarily took steps to shield the case prosecutors from materials related to your client’s newsgathering activities does not create any right or privilege for your client, and there would be no suppression right or remedy available, even supposing that there had been a deviation from the protocols the government elected to impose upon itself. [my emphasis]

But note the reference to “this case.”

As consistent with DOJ’s assurances that they will only rely on one laptop to prove the CSAM case against Meek, the forfeiture language in the indictment applies to just that one laptop.

But given Gorokhov’s language in the MTC, the warrants were written to access everything.

Given that the investigation was purportedly focused on CSAM, which is limited to a “visual depiction” of minors engaged in sexually explicit conduct, it is not clear why the government sought to have law enforcement agents search the entirety of Mr. Meek’s files.

To be fair, FBI searches everything in CSAM cases, not least because of means that sophisticated users use to hide CSAM.

But it’s an especially apt question given that, the day after the search, the FBI discussed suspicions that Meek had classified documents.

The FBI’s internal documents and communications in the wake of the raid, disclosed to defense counsel only after Mr. Meek was charged, revealed that the government planned to investigate its suspicions that Mr. Meek possessed classified documents.

This is a loophole I pointed out when Merrick Garland first rolled his revised media guidelines. The guidelines offered new protections to reporters obtaining classified materials in the course of newgathering — as Meek would have been.

But it also exempted subjects from the guidelines if they were suspected of a non-newsgathering crime. Like CSAM possession. Or, in the case of Julian Assange, the hacking charge with which he was first charged (I believe the Espionage Act is also exempted, and foreign agents are definitely exempted).

This is, I suspect, an error that Rashida Tlaib made in her letter calling on Merrick Garland to drop the charges against Assange. She suggests that dropping the indictment would be in keeping with Garland’s new policy.

As Attorney General, you have rightly championed freedom of the press and the rule of law in the United States and around the world. Just this past October the Justice Department under your leadership made changes to news media policy guidelines that generally prevent federal prosecutors from using subpoenas or other investigative tools against journalists who possess and publish classified information used in news gathering. We are grateful for these pro-press freedom revisions, and feel strongly that dropping the Justice Department’s indictment against Mr. Assange and halting all efforts to extradite him to the U.S. is in line with these new policies.

Ignoring the possibility that DOJ has made a foreign agent determination with Assange — a very real possibility, in his case, in which case the policy doesn’t apply at all — it still seems that the plain language of the policy suggests once you become an investigative subject for a non-newsgathering crime — hacking in the case of Assange, CSAM possession in Meek’s case — then the application of the policy is uncertain.

As DOJ moves towards a June 20 trial date for Meek on CSAM charges, three of his laptops remain, unexploited, at the FBI. DOJ has said he has no reporter’s privilege interest in the CSAM case and that’s absolutely right. But those three laptops, obtained with a warrant approved on that suspect exception, as well as other reporting materials from the devices they did exploit, still remain in FBI’s custody, obtained with a warrant gotten under the suspect exception.

The charges against Meek are very serious and quite disturbing. But that makes his case a very good test of how Garland’s media policy applies with someone who is a suspect in an awful crime, but also, by any measure, an investigative reporter. DOJ seized, and is holding (in potentially encrypted form) materials and devices that relate to his newsgathering which would otherwise be covered by the news media policy. DOJ has kept these materials from the CSAM team. But after his prosecution, what will become of those materials?

Disclosure: In this post I describe my limited acquaintance with Meek going back to the Libby trial, with more recent interactions in 2018 or 2019.

Timeline

March 11, 2021: NCMEC received tip from Dropbox

June 2021: Virginia State Police served subpoenas on Verizon and Google

N.d.: VSP referred case to Arlington County Police Department

September 7, 2021: Referral from ACPD to FBI

November 24, 2021: Filter team memoranda

April 22, 2022: Filter team memoranda

April 27, 2022: Search

April 28, 2022: FBI email chain stating Meek may be in possession of classified information

October 19, 2022: Rolling Stone reported on search; Marjorie Taylor Greene tweet claims to know search was about CSAM

November 2, 2022: Gorokhov raises leaks with AUSAs

December 19, 2022: Rolling Stone reported “indictment” being prepared

January 31, 2023: Arrest affidavit [warning: exceptionally graphic language]

February 1, 2023: At detention hearing, DOJ incorrectly claimed Meek said his “life was over”

February 20, 2023: Consent motion for extension of indictment

February 24, 2023: Meek discovery letter

March 16, 2023: DOJ response, stating that it does not intend to produce filter team memo

March 30, 2023: Indictment

March 31, 2023: Follow-up discovery letter

April 7, 2023: Government response

April 20, 2023: Motion to compel disclosure

April 21, 2023: Judge Claude Hilton granted complex designation, set June 20 trial date

Peter Debbins, Shrink-Wrapped Spy

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Update: Debbins was sentenced to 188 months, slightly less than the government had requested. 

Peter Debbins, the former Special Forces guy who pled guilty to spying for GRU through 2011 last November, will be sentenced today at 10AM ET. Because the sentencing hearing will be in person in the press-stifling Eastern District of VA, there will be scant coverage of the hearing. So I wanted to make an observation beforehand, in case it’s useful for anyone who does show up to EDVA.

The government’s sentencing memo, which was entirely unredacted, basically gave Debbins some credit for cooperating, while at the same time suggesting that they didn’t really believe he had stopped spying at precisely the moment, in 2011, when a renewed TS/SCI clearance would have made him more useful as a spy.

Debbins’ sentencing memo basically argued that evil Russians exploited his same-sex attraction to psychologically torture him, which is why he spied.

Mr. Debbins is extremely self-reflective, recognizing that he had “excellent work performance, high social standing, many friends, and a happy family,” but that on the inside, “with all this psychological and physiological torture” all he wanted was to “unload these racing thoughts to pass my polygraph, without considering the legal ramifications.” Id. Looking back, Mr. Debbins “regrets going to Russia” because he should have known better how “its nefarious government regards people as an expendable commodity, ubiquitous with no intrinsic value and I was especially vulnerable.” Id. More powerfully, Mr. Debbins “regrets not confronting my mental illness earlier and am so heartbroken for all the pain and suffering it caused my family and country.” Id. In his final paragraphs, Mr. Debbins exclaims that the “the Russian GRU ruined my honor and potential as an American,” and asks this Court for its leniency to “restore to me what the Kremlin stole from me, my integrity as an American,” so that “Americans who wish to escape a similar situation are not hopelessly trapped.”

He submitted a declaration describing the symptoms of the “insanity” that caused him to spy.

I descended into insanity unable to distinguish between reality and fantasy, and from 2014 until my arrest, I experienced the following:

  • Suffered from insomnia which gave me 3 hours of sleep a night
  • Had bizarre dreams, night terrors, and hallucinations of meeting with the GRU. I even thought they were in my house and I removed the smoke detectors believing they were surveillance devices.
  • Crossed moral boundaries
  • Was always in a manic state of high energy
  • My mind would race constantly
  • Conducted trances to enter into the “subconscious universe”
  • Believed I could communicate via telepathy and dreams
  • Excessively used caffeine, alcohol, and sleeping medication
  • Believed in signs and omens
  • Was paranoid of the GRU and loved ones. I thought my wife and daughter were working for the GRU, which may explain why I didn’t pass the 2019 FBI polygraph. The FBI didn’t believe me when I told them that I had no post-2010 contacts
  • Believed the souls of my aunts and uncles who perished from Stalin’s famines were living through me
  • Created fantasies of past misdeeds needing atonement
  • Had delusions of becoming a double agent
  • As a CI professional, I was becoming that what I gazed upon and demonized myself as having affinity to Russia.

The government’s response to Debbins’ submission, which was heavily redacted, basically called bullshit on Debbins’ explanations, laying out with a declaration from one of the FBI Agents who interviewed Debbins over a series of meetings from July to December 2019 how Debbins’ current claims to be motivated by shame about his same-sex attraction conflicts with his comments throughout 2019, when Debbins said he spied out of loyalty to Russia.

During the last interview conducted on December 20,2019, I asked Debbins, “what was the biggest thing … that you think they used, overtly, covertly, implicitly, to encourage the relationship?” Debbins answered, “They just let me feel validated. You know … my meaning … was as a loyal son of Russia. Uhm, I felt, you know, encouragement from them.” Debbins explained, “my mother being Russian, … they … help[ed] reinforce that self-image. “

I assumed, as I know several other people tracking this case assumed, that the large redactions in the government filing were — as most redactions in EDVA are — about national security. I assumed that the boilerplate in the motion to seal the government response would, like most boilerplate in EDVA, discuss the need to seal for national security purposes.

But it doesn’t. It reveals that those sealed sections address Debbins’ confidential health information, his psychiatric diagnosis.

The United States seeks to file the Government’s Response Brief under seal because it contains information from two filings that the Court recently sealed at the request of the defense. See Order (May 10, 2021) (Dkt. No. 52). As the defense explained in its motion to seal, those filings contained confidential health information regarding the defendant.

Sure, the government cheated in one redaction in their footnote 3, which probably rebuts Debbins’ claim to have been fully cooperative with the FBI. But otherwise, we should assume the large swaths of redacted material address Debbins’ psychiatric evaluation.

That’s important, because Debbins is relying on a psychiatric assessment by David Charney.

This behavior from years ago corroborates Dr. Charney’s psychiatric assessment of Mr. Debbins as it relates to his [redacted]

[snip]

This Court is extremely familiar with other such espionage cases, like that of Robert Hanssen, whose espionage activities led to both the imprisonment and deaths of Americans. Another individual, Aldrich Ames, compromised more highly classified CIA assets than any other spy in history, until Robert Hanssen came along. Both Hanssen and Ames received life sentences. Earl Pitts, with whom Dr. Charney is intimately familiar, sold secrets to the Soviets and received hundreds of thousands of dollars for his information. Mr. Pitts received a twenty-seven (27) year sentence. Brian Regan wrote letters to Saddam Hussein, Libya, and China offering to sell information for millions of dollars. He had downloaded tens of thousands of classified documents and was arrested on a plane to Switzerland with the documents. He was sentenced to life in prison after being found guilty by a jury.

[snip]

As such, considering these facts and the psychiatric assessment by Dr. Charney, Mr. Debbins is deserving of a sentence significantly below the low-end of the guidelines.

David Charney is a psychiatrist who worked with the defense teams of Earl Pitts, Robert Hanssen, and Brian Regan — several of those spies that, Debbins is arguing, he is not as bad as. Charney has a non-profit pitching an alternative approach for insider threats, reconciliation, which involves lowering the costs of spies turning themselves in.

Charney alluded to working with Debbins in a December Spy Talk piece in which he argued that rather than the obvious motivations (in Debbins’ case, that he’s loyal to Russia), people actually spy for subconscious reasons only accessible with the help of a shrink.

Trying to understand the psychology of a mole is tougher than it first appears. The acronym MICE is bandied about in intelligence community circles because it seems to cover all the bases of why trusted people turn coat: Money, Ideology, Compromise, Ego. From my experience with year-long interviews of three caught spies, including the notorious Robert Hanssen, and lately with a fourth spy I cannot yet name, I believe the acronym MICE does not suffice.

Human beings are far more complex than the limits of the acronym. There are deeper layers that, in fact, may be far more important. Those may not be fully clear even to the spies themselves: They are subconscious. To simplify things for themselves, disaffected spies try to apply a veneer to their motivations that seems internally plausible. They will seize upon rationalizations that elevate their motivations to appear to serve higher purposes, which is when ideology comes into play. Ideology provides a seemingly coherent higher purpose to their life choices, a morally glorious dimension to their decisions to cross the line. [my emphasis]

Charney’s theory (which he’s pitching to the IC) argues that if only spies can turn themselves in early in their career without the risk of prison time, it’ll lead more spies to do so when they first come to regret their decision.

When someone decides to step over the line to become an insider spy, he or she now find themselves stuck and trapped. It dawns on them that they have no way out. They come to realize it’s unthinkable to beg to be released from their handler because too many bad things can happen. Think of the Mafia.

By the same token, to turn themselves in to their home agency’s security office offers no better prospects. The insider spy cannot expect to be welcomed back. More likely, they spy will face severe punishments leading to career termination and everyone in the intelligence community knows this.

Being stuck in this no-win situation causes the insider spy to resign to stay put, take their chances, and hope for the best. Lacking any viable alternatives, they are forced deeper into the arms of the hostile intelligence service that owns them. And the damages they inflict on our national security accumulate year by year.

What if there were a way out? What if there were an alternative pathway (reconciliation) so an insider spy could voluntarily turn himself or herself in? What if there were a recognized, safe, government-sanctioned exit mechanism? Imagine such a thing.

If reconciliation were made available, what could possibly motivate an insider spy to consider it? The single most important motivator would be that he will not be sentenced to prison. From the perspective of an insider spy, prison would be a deal-breaker. [emphasis original]

Charney may well be right that the US government’s draconian approach to national security crimes ends up doing as much harm as good. But Charney has at the very least a predisposition — and possibly a significant financial incentive — to tell a story about Debbins that blames The Closet for his spying rather than ego, rather than the pride in being Russian that Debbins used to explain his spying before Charney got involved. And Debbins’ lawyer has an incentive to blame The Closet rather than Russian nationalism as well, if only to explain away lingering government concerns that there’s no way Debbins would have stopped spying just when the spying became really useful to Russia, when he got his TS/SCI clearance.

As the government notes in their response, however, Charney’s theory doesn’t apply here because Debbins only turned himself in after failing a polygraph.

There’s another problem with applying Charney’s theories to Debbins. Debbins is right that he’s different than those others in Charney’s comparison set: Pitts, Regan, and (especially) Hanssen. Debbins was not recruited at a time when he was disillusioned with his career, like Hanssen was. Rather, Debbins was recruited from a young age and most of the things he did before 2011 — before he got his TS/SCI restored — were largely grooming activities, grooming activities that largely governed the decisions that put Debbins in a national security position in the first place.

I assume the government makes some of these points in the redacted sections. So the hidden stuff is fairly explainable, once you realize that this is largely about Charney’s arguments about spying.

It’s the unredacted stuff in the government’s response that is still inexplicable. When someone reneges on a statement of responsibility, the government never blows that off in sentencing filings. When Mike Flynn reneged on responsibility for lying to the FBI, for example, prosecutors got all of DOJ to buy off on a much harsher sentencing memo, even though it would have no impact on Flynn’s sentencing guidelines.

Here, however, the government basically argues Debbins’ attempts to back out of things he said when he pled in November will all get accounted for in the sentence they requested before he disclaimed responsibility.

The Government submits that Debbins’s failure to accept responsibility for his conduct and false statements support a guidelines sentence of seventeen years.1

1 The Government does not request that the Court revise the guidelines calculation to take away the 3-level reduction that the probation officer credited Debbins for his timely plea under U.S.S.G. § 3E1.1. Instead, the Government asks the Court to consider Debbins’s failure to accept responsibility and false statements in imposing a substantial sentence within the guidelines range, pursuant to 18 U.S.C. § 3553(a).

Effectively, the government is doing the unheard of thing of having someone dismiss the damage he did to national security concerns with no cost imposed. In EDVA, no less!

The debate at EDVA today may be about Charney’s theories (though I would be shocked if Judge Claude Hilton buys any of this — I wouldn’t be surprised if he sentenced Debbins to more than the 17 years the government is requesting). But the real drama, in my opinion, has to do with why the government is acting so uncharacteristically forgiving.