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Episode Three of Who Rules Your World? Begins: The Leak Retribution Event

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Episode one of Who Rules Your World?, pitting Barack Obama against Rupert Murdoch, passed mostly under the radar. The “privatize education” event ended in an early draw when the darling of both contestants, Michelle Rhee, resigned in disgrace for a cheating scandal. Though in truth, Murdoch’s loss of a big NY state contract (the contract opportunity arose out of Obama’s Race to the Top program) and Obama’s determination to continue his reforms using executive orders tips the balance to the President.

Episode two of Who Rules the World?, the illegal wiretap cover-up, has thus far been a clear Obama win. Within weeks after taking office, Obama reaffirmed the state secrets invocations of his predecessor. And while al-Haramain still fights to impose penalties in its successful case against the government, Obama has otherwise succeeded in shielding the government for any accountability for illegal wiretapping. Crucially, John Brennan, who had a role in the illegal wiretap program, has suffered no consequences for his role in the scandal.

Rupert’s son James has not enjoyed the same luck Brennan has. He had to resign from BSkyB to prevent News Corp’s hacking scandal from endangering the rest of the corporation’s business plans. Add in the substantial fines News Corp has already paid and the likelihood that a number of people involved in its illegal wiretap program will do jail time, and it’s clear that Obama has won the illegal wiretap coverup hands down.

Episode Three of Who Rules Your World?, leak retribution, might be more interesting. Sure, the retribution against Jeff Sterling for his employment dispute with John Brennan and John Kiriakou for revealing members of the torture squads (a program Brennan also had ties to) are ongoing. But the case against Thomas Drake for exposing the graft involved in NSA’s illegal wiretap contracts blew up in spectacular fashion; plus, the failure of the retribution against Drake has led to more revelations about the illegal wiretap program.

Meanwhile, we’re just beginning to see how News Corp will respond to the efforts of Fox Mole, now exposed as Joe Muto, for passing embarrassing videos to Gawker. It will be particularly interesting to see how Fox balances retribution with a desire to prevent any more embarrassing revelations. Though of course, Fox is hampered because unlike Obama, he can’t make Fox Mole unemployable by withdrawing his security clearance. Unlike national security whistleblowers, Muto’s employment prospects probably just got a lot rosier, as other news outlets scramble to add to News Corp’s discomfort.

It’s probably just as well that Obama is winning Who Rules Your World? by such margins at this point. I wouldn’t want Rupert to get smart ideas about trying to compete in the assassinations category.

Leak Prosecutions: Enforcing Secrecy Asymmetry Does Not Equate to Rule of Law

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Matt Miller has a piece in the Daily Beast defending the Obama Administration’s prosecutions of leakers. Now, as Josh Gerstein notes, Miller makes his work easier by cherry-picking which cases to discuss; he doesn’t mention Thomas Drake, who was pretty clearly trying to expose waste and fraud (as well as the government’s choice to spend more money to provide less privacy protection). And he doesn’t mention Bradley Manning, who is alleged to have leaked at least some materials that expose war crimes and a lot more than expose abuse (though note, DOD, not DOJ, is prosecuting Manning).

But Miller’s argument suffers from a much bigger problem. He operates under the assumption that the sole crux of legitimacy arises from a distinction between whistleblower and leaker that he presents as absolute.

To start with, that distinction isn’t absolute (as Manning’s case makes clear). But even with John Kiriakou, whom Miller does discuss, it’s not absolute. Recall what Kiriakou was charged with: leaking the identity of a still covert officer involved in the torture program, being one of up to 23 people who leaked that Deuce Martinez–who was not covert–was involved in the torture program (though didn’t do the torture), and lying to the CIA Publication Review Board about the classification of a surveillance technique details of which have been readily available for decades (and which seems to be related to the Secret PATRIOT GPS application targeting American citizens in probable violation of the Fourth Amendment). In other words, two people involved in an illegal program and one technique that was probably improperly classified and since become another questionably legal executive branch spying technique.

But the entire investigation arose because defense attorneys with Top Secret clearance used the covert officer’s name in a still-sealed filing about the abuse their client had suffered at the hand of the US, possibly–though we don’t know–at the hand of the covert officer (because he is covert, the defense attorneys did not use the officer’s name or picture with their client).

Now, I have no way of knowing (nor does Miller) Kiriakou’s motive, and his case will probably end in a plea, meaning we’ll never get to learn it at trial. But the very genesis of the case–the defense attorneys’ attempts to learn who had tortured their clients so as to be able to adequately represent them–arises from the government’s failure to prosecute anyone for torture and its insistence on withholding arguably relevant information from legal teams, presumably in part to prevent them from attaining any redress for that torture in courts.

So regardless of Kiriakou’s motive, to argue for the legitimacy of his prosecution as events have transpired is to distract from the larger system in which the government uses secrecy to avoid legal consequences for its own crimes–regardless of what that does for justice.

And it’s not just with Gitmo detainees’ lawyers that the government has withheld information to prevent justice being done. It did that with al-Haramain, the Maher Arar suit, Jeppesen Dataplan–the list of times when the government has claimed something, even a widely known fact, is super duper secret just so it can’t be sued or prosecuted is getting quite long and tired. And, of course, it continues to do it with the Anwar al-Awlaki killing, preferring inconsistent claims of Glomar and state secrets to full accounting not just of Awlaki’s killing, but of the claims about Presidential power more generally.

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William Welch’s Gimmick and the Harassment of James Risen

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As Josh Gerstein reports, Leonie Brinkema has unsealed her November 2010 ruling quashing the government’s subpoena of James Risen to testify before the grand jury. Gerstain describes several interesting details revealed in the ruling–including that the government withheld information, including details surrounding the 2005 testimony of, apparently, a Senate staffer. Go check out those details.

There are a couple of things I wanted to add to Gerstein’s analysis, though.

First, when the subpoena was first announced, I suggested that it appeared that the government’s inclusion of ticky tack charges like mail fraud seemed like an effort to invent a reason to require Risen’s testimony.

It appears likely they planned to [subpoena Risen again] all along and crafted the charges against Sterling accordingly. For example, they claim they need Risen to testify, in part, to authenticate his book and the locale where alleged leaks took place.

Risen can directly identify Sterling as the individual who illegally transmitted to him national defense information concerning Classified Program No. 1 and Human Asset No. 1. Because he is an eyewitness, his testimony will simplify the trial and clarify matters for the jury. Additionally, as set forth below, Risen can establish venue for certain of the charged counts; can authenticate his book and lay the necessary foundation to admit the defendant’s statements in the book; and can identify the defendant as someone with whom he had a preexisting source relationship that pre-dated the charged disclosures. His testimony therefore will allow for an efficient presentation of the Government’s case.

Locale issues stem from mail fraud charges that appeared ticky tack charges up to this point. But the government is now arguing that that information–as distinct from whether Sterling served as a source for the information at issue–is critical to these ticky tack charges. Which, it seems they hope, would get them beyond any balancing test on whether Risen’s testimony is crucial for the evidence at question.

As it turns out, Brinkema’s opinion makes it clear that the biggest window she left the government to call Risen at trial was authentication.

Although the government might have a plausible argument that such authentication may be necessary at trial, it cannot argue that the government has a compelling interest in authenticating chapter 9 during grand jury proceedings.

But given that she has rejected the government’s venue articles, it appears the mail fraud charges are a cheap attempt to enlarge the possible window of necessity of calling Risen for authentication.

In other words, it appears likely that Welch is just using a gimmick to try to force Risen to testify.

Which brings us to Risen’s claim the government is harassing him. Of note, Brinkema dismisses the claim that a new Attorney General couldn’t harass Risen, because some of the other lawyers on the case might be Bush dead-enders.

The issuance of the 2010 subpoena under a new Attorney General does not remove the specter of harassment, because we do not know how many of the attorneys and government officials who sought Risen’s testimony in 2008 are still in their jobs and to what extent, if any, they advised the new Attorney General about approving the subpoena.

She also notes that requesting all his book proposals supports a harassment charge; I would suggest it does so more so when you consider the possibility they were harassing Risen for the warrantless wiretap story that would also have been in the book proposal. But Brinkema doesn’t consider the way the Obama Administration has made some crazy ass arguments to defend Bush against illegal wiretap charges, which shows Obama’s DOJ is protecting the program itself as fiercely as Cheney did. In addition, she doesn’t consider Welch’s history of being a sloppy, overly aggressive prosecutor (though her disapproval of the broad scope of the Welch subpoena suggests she’d be open to such an argument).

But given my suspicion that a community of interest subpoena in this case might have served as a fishing expedition for the government’s investigation in the warrantless wiretap case, I’m particularly interested in the date the grand jury was convened in this case.

A grand jury sitting in the Eastern District of Virginia began investigating the disclosures about the [MERLIN] operation in

or about March 2006.

That’s not surprising, mind you. But it does date when a grand jury subpoena asking for a community of record might have been issued. And it does suggest that this investigation started at the same time as the government was going apeshit over their exposure on the illegal wiretap front.

James Risen’s Community of Interest

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I’ll probably have several things to say about the James Risen filings of the past week. But for the moment, I wanted to focus on his assertions about the government’s access of his phone records.

Remember, these assertions are not new: Josh Gerstein reported them in February.

Risen said the government never notified him that they were seeking his phone records. But he said he got an inkling in 2008 that investigators had collected some information about his calls.

“We heard from several people who had been forced to testify to the grand jury that prosecutors had shown them phone records between me and those people—not the content of calls but the records of calls,” he said. “As a result of what they told us, my lawyers filed a motion with the court as asking how the Justice Department got these phone records and whether or not they had gotten my phone records.”

“We wanted the court to help us decide whether they had abided by the attorney general’s guidelines,” Risen said. “We never got an answer from the court or the government.”

But Risen’s affidavit discussion of the government accessing his phone records includes a few interesting new details. First, the earliest chronological mention he makes of the government accessing his phone records–he makes it very clear he’s talking about records, not content–dates to 2006.

Around the same time that the Government was making public statements about potentially prosecuting journalists, Brian Ross and Richard Esposito of ABC News reported on May 15, 2006, that senior federal law enforcement officials had informed them that the government was tracking the phone numbers of journalists without the journalists’ knowledge as part of an effort to root out the journalists’ confidential sources. According to the article, the journalists’ phones were not being “tapped,” but the government was tracking the incoming and outgoing numbers called and received on the journalists’ phones. The story stated that the government was examining the phone calls and contacts of journalists from ABC News, The New York Times, and the Washington Post as part of a “widespread CIA leak investigation.” I was mentioned by name as one of the reporters whose work the government was looking into.

More interesting, Risen notes that someone who testified before the warrantless wiretapping grand jury–not the Sterling grand jury–was shown copies of his phone records.

I have reason to believe that the story by Brian Ross and Richard Esposito is true. Since that story was published, I have learned from an individual who testified before a grand jury in this District that was examining my reporting about the domestic wiretapping program that the Government had shown this individual copies of telephone records relating to calls made to and from me.

Which ties in with Risen’s claim that this subpoena (and the other two) is about persecuting–and possibly imprisoning–him in retaliation for the warrantless wiretap story (again, not the MERLIN story Sterling allegedly served as a source for).

I believe that the investigation that led to this prosecution started because of my reporting on the National Security Agency’s warrantless wiretapping program. The Bush White House was furious over that story. I believe that this investigation started as part of an effort by the Bush Administration to punish me and silence me, following the publication of the NSA wiretapping story.

So to sum up, Risen asserts his phone records were collected around 2006 in retaliation for the warrantless wiretap story. And he says he first learned that definitively when he learned warrantless wiretap grand jury witnesses had been shown his phone records. He says this Sterling investigation is just retaliation for that the wiretap story.

Recall that I made a wildarsed guess back in February that James Risen was the reporter whose phone contacts had been picked up using a community of interest grand jury subpoena (a subpoena that picks up all a person’s phone contacts, as well as all the contacts of his contacts). As DOJ’s Inspector General reported, an FBI case agent had worked with onsite telecom analysts to make the first subpoena in a leak case “as encompassing as possible.” There are contradictory stories about whether the case agent would have known that such a subpoena would have picked up a known reporter’s contacts. But when the prosecutor learned that such a subpoena would include the reporter’s contacts, the FBI sealed the reporter’s records in the case agent’s case files. But it appears DOJ did nothing about the records on the telecom side. Plus, a great deal of the discussion on what they did with the records in the FBI database is redacted. In the last days before Obama came into office, DOJ got an OLC opinion and interpreted it very liberally to claim they did not have to inform the reporter that his or her records had been collected. So we–and more importantly, the reporter–still don’t know whose records were collected improperly.

My suggestion Risen might be the journalist in question was a wildarsed guess. But here are two of the reasons I thought it was possible that Risen was the journalist in question.

  • The subpoena would have had to have been issued between early 2002, when DOJ first contracted to have the telecom involved onsite, and January 2008, when the telecoms moved out of CAU. If it were indeed a community of interest subpoena, then it would have had to have been issued before early 2007, when the FBI discontinued the program. While we don’t know whether the Sterling investigation began after Risen first tried to report the story in April 2003 or after he published his book in January 2006, both would fall in the time frame during which CAU was active.
  • The investigative team was clearly focused on one target, which would be the case in the Sterling investigation but not–for example–in the warrantless wiretap investigation. In addition, the investigative team knew of at least one reporter who had had contact with the target; given both a 2000 article Risen had written about Sterling and the unsuccessful attempt to publish [the MERLIN story] in 2003 would have alerted the CIA that Risen was in contact with Sterling.

I’ll add one more timing detail. If Risen were the reporter whose records had been collected, then the OLC opinion would have come after the time in 2008 when Risen’s lawyers asked the government whether it had complied with guidelines about reporters’ phone contacts–a question the government has never answered.

Now, none of this means Risen was the reporter in question. By the same token, this use of a community of interest subpoena was only discovered because the prosecutor discovered the implications of its use–as an exigent letter–in another case he was working; there may well be other instances where agents got community of interest subpoenas in leak cases knowing they’d pick up reporters’ contacts that, for a variety of reasons, never got reported.

Furthermore, Risen was in a rather unique position in 2006: his reporting was the target of two leak investigations. This one, in which the government had a good idea of at least one of his sources. And the warrantless wiretap one, in which the government presumably had much less of an idea of his sources. A community of interest subpoena on Jeff Sterling–which would pull up Risen’s calls with Sterling but also his calls with warrantless wiretap sources–would serve both investigations. And the unredacted IG language seems to address sealing his records only in the Sterling case.

With that in mind, look at what the government claimed about Risen’s phone records in this case.

In addition, as a point of clarification, the government has not subpoenaed the telephone records of any reporter in this particular investigation.

Note two parts of this denial: first, the government says it hasn’t subpoenaed the phone records of any reporter. Presumably they mean no reporter has been the target of a subpoena. But with a community of interest subpoena, of course, the government would get Risen’s call data without subpoenaing him directly.

Furthermore, the government makes this claim only about the Sterling investigation. It says nothing about any other investigation of leaks to Risen.

Risen may or may not have been this reporter whose records were accessed via a community of interest subpoena. But his discussion of how the two investigations–the wiretap investigation and the MERLIN investigation–relate, as well as the detail that witnesses in the wiretap grand jury were the ones questioned about his call records, suggest one possible explanation: that using a community of interest subpoena in the Sterling investigation served as an investigative boost for the wiretap investigation.