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The US Attorney for CIA Scrambles to Cover-Up CIA’s Torture, Again

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Bmaz just wrote a long post talking about the dilemma John Kiriakou faces as the government and his defense lawyers attempt to get him to accept a plea deal rather than go to trial for leaking the names of people–Thomas Donahue Fletcher and Deuce Martinez–associated with the torture program.

I’d like to look at four more aspects of this case:

  • The timing of this plea deal–reflecting a realization on the part of DOJ that their efforts to shield Fletcher would fail
  • CIA’s demand for a head
  • The improper cession of a special counsel investigation to the US Attorney for Eastern Virginia
  • The ongoing efforts to cover-up torture

The timing of the plea deal

Intelligence Identities Protection Act cases will always be risky to bring. By trying someone for leaking a CIA Agent’s identity, you call more attention to that identity. You risk exposing sources and methods in the course of proving the purportedly covert agent was really covert. And–as the case against Scooter Libby proved–IIPA often requires the testimony of spooks who lie to protect their own secrets.

There is a tremendous irony about this case in that John Kiriakou’s testimony in the Libby case would have gone a long way to prove that Libby knew Valerie Plame was covert when he started leaking her name, but now-Assistant Attorney General Lanny Breuer talked Patrick Fitzgerald out of having Kiriakou testify. Small world.

Bmaz notes that the docket suggests the rush to make a plea deal came after Leonie Brinkema ruled, on October 16, that the government didn’t need to prove Kiriakou intended to damage the country by leaking the names of a bunch of torturers. That ruling effectively made it difficult for Kiriakou to prove he was whistleblowing, by helping lawyers defending those who have been tortured figure out who the torturers were.

But the rush for a plea deal also comes after Matthew Cole and Julie Tate filed initial responses to Kiriakou’s subpoena on October 11. And after the government filed a sealed supplement to their CIPA motion that same day.

While both Cole and Tate argued that if they testified they’d have to reveal their confidential sources, Tate also had this to say in her declaration.

In 2008, my colleagues and I were investigating the CIA’s counterterrorism program now known as Rendition, Detention and Interrogation Program” (the “RDI Program”).

[snip]

I understand that defense counsel has subpoenaed me to testify about the methods I may have used to obtain the identity of CIA officers during 2008 while I was researching the RDI program.

Tate doesn’t say it explicitly, but it’s fairly clear she was able to get the identity of CIA officers involved in the torture program. Her use of the plural suggests she may have been able to get the identity of more than just Thomas Fletcher and Deuce Martinez. And she says she would have to reveal the research methods by which she was able to identify CIA officers who were supposedly covert.

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Obama DOJ Claims Journalists Are Like Drug Users

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HuffPo has a good write-up of Friday’s Fourth Circuit hearing on whether James Risen is entitled to a reporter’s privilege in the Jeff Sterling case. It describes Judge Robert Gregory challenging DOJ appellate lawyer Robert Parker’s claims that there is no privilege at all. And while Charlie Savage described the two other judges as harder to read, both stories noted Albert Diaz calling Branzburg v. Hayes–the SCOTUS precedent–“clear as mud.”

I’m particularly interested in the way Gregory pushed back against Parker. He made a distinction between the crime that reporter Paul Branzberg witnessed–the preparation and consumption of hash–for which he was called to testify to a grand jury, and what Risen allegedly witnessed.

“I don’t think there would be a balancing test because there’s no privilege in the first place,” Parker said. “The salient point is that Risen is the only eyewitness to this crime.”

Gregory told Parker that the Supreme Court’s Branzburg v. Hayes decision — which Parker cited as precedent for forcing journalists to testify when they had witnessed a crime — involved the witnessing of a different crime, “not the disclosure itself.”

Parker said what Risen did was “analogous” to a journalist receiving drugs from a confidential source, and then refusing to testify about it.

“You think so?” Gregory asked, clearly unconvinced.

“The beneficiary of the privilege is the public … the people’s right to know,” Gregory said. “We need to know what the government is doing,” he noted. “The king never wants anyone to disclose.”

The challenge is interesting as a threshold level, because the Obama Administration has built a lot of their attacks against leaks on the notion that journalists are witnesses to a crime (Patrick Fitzgerald obtained Judy Miller’s testimony on the same basis, though he did so though an application of the balancing test that Parker wants to throw out altogether).

Obama’s DOJ has gone further, though: they appear to have approved the use of National Security Letters to obtain journalists’ contacts in the most recent update of the DIOG. That would appear to allow them to learn the identity of sources journalists phone or email without any judicial review. Which in turn allows DOJ to determine a crime has been committed and based on that, eliminate journalists’ confidentiality because they were “witnesses” to what DOJ has unilaterally determined is a crime.

If Gregory rejected the government’s argument based on leaks being a different kind of crime, it would not only protect Risen’s sources for his MERLIN story, but it would mean the government would have to curtail its use of NSLs to get journalist contacts (at least in the Fourth Circuit).

But this passage is revealing for another reason. As I said above, Branzberg was subponaed because he witnessed the use of illegal drugs. But Parker, in constructing his analogy, said receiving classified information from a source is like receiving illegal drugs, not just witnessing them. Note what that misapplication of the analogy does: It is not illegal to witness the use of drugs, but it is illegal to possess illegal drugs.

In other words, though no law supports such a suggestion, DOJ is now arguing that journalists who receive classified information are themselves criminals, just like those who possess hash.

Someone’s smoking something awful at DOJ.

William Welch Leaving DOJ; Main Justice Circles The Ethical Wagons

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Apparently the thrill is finally gone, or at least soon to be gone. Carrie Johnson at NPR has just reported:

A federal prosecutor who led the elite public integrity unit when the case against the late Alaska Sen. Ted Stevens collapsed has told associates he will leave the Justice Department.
….
A spokeswoman for the Justice Department and a representative for Welch had no comment on his departure, which one source said he characterized as a “retirement.”

Welch had been scheduled to lead a controversial prosecution later this year of former CIA official Jeffrey Sterling, who is accused of leaking secrets to New York Times reporter James Risen. That case has drawn widespread media attention because it could set important precedent on the issue of whether reporters enjoy some sort of legal privilege that could help them protect their sources.

This is interesting, actually fascinating news. As Carrie notes the Sterling matter is hanging in the lurch. In fact, it is waiting on an interlocutory appeal decision from the 4th Circuit over claims that the DOJ, once again led by Welch, played fast and loose with critical evidence disclosure. I do not, however, think that the impetus behind this somewhat surprising announcement. The 4th case appears to have completed briefing with the government’s filing of a redacted reply about six weeks ago; however, I don’t think a decision is likely coming that fast and federal appellate courts are not that leaky. Although, to be fair, District and Circuit courts do, occasionally in media intensive cases, give the parties a heads up a decision is coming.

More likely, this is more fallout from the Ted Stevens case and the Schuelke report. In fairness to Welch, he was not one of the hardest hit DOJ attorneys in Schuelke’s report, but he was blistered by Schuelke at Schuelke’s testimony in front of the Senate Judiciary Committee in late March:

Schuelke said tight deadlines before the lawmaker’s October 2008 trial and a series of missteps within the Justice Department’s public integrity unit where leaders William Welch and Brenda Morris “abdicated supervisory responsibility” contributed to the evidence sharing lapses. The failings prompted new Attorney General Eric Holder to abandon the case in 2009; Stevens died a year later in a plane crash after he had lost his Senate seat.

The odds are fairly good that the DOJ is putting the finishing touches on its long awaited OPR report on the Stevens fiasco and, after Schuelke, needs a sacrificial lamb. And Welch is a prime candidate to be sacrificed. But that would beg the question of what will they do about Brenda Morris, whose conduct in Stevens was much more egregious and central, as a supervisor, that even that of Welch. And it should not be forgotten that Brenda Morris was also smack dab in the middle of another catastrophic black eye for the DOJ, the Alabama bingo cases. So, there are some real questions for DOJ there.

As to William Welch though, with both the OPR report nearing completion, and the prospect of a House Judiciary inquiry looming later this week, it would seem that Welch’s newfound desire for “retirement” has a bit of a forced edge to it.

One last thing should be kept in mind: the legislation proposed by Lisa Murkowski and having key bi-partisan backing after Stevens and the Schuelke Report, to reform federal evidence disclosure rules for the DOJ. The DOJ is literally, and cravenly, apoplectic about the proposed reform and has promised they have “learned their lesson” and that everybody should just “trust us”.

DOJ had been fighting disclosure reform hard for quite a long time; but there will never be better momentum than is present now, and they know it. Any seasoned criminal defense attorney will confirm that the far more open and reciprocal discovery rules found at the state level in several more enlightened jurisdictions (I can vouch for this in Arizona, which is one of them) work far better than the archaic disclosure rules extant in federal court. It would be a huge benefit to fairness in the criminal justice process, and it IS an attainable goal. And that, too, may be why we are seeing the sacrifice of William Welch.

The Wiretap Jury on the Iran War

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At a moment when the Obama Administration is still aggresively pursuing James Risen’s testimony on sources for an Iran story he wrote 7 years ago, on Saturday he published a new story summarizing the uncertainty surround intelligence on Iran right now.

In the story, Risen reveals that both the 2007 and the 2010 NIEs on Iran’s nuke program got held up and rethought because of intercepts collected during the writing process.

The draft version [of the 2007 NIE] had concluded that the Iranians were still trying to build a bomb, the same finding of a 2005 assessment. But as they scrutinized the new intelligence from several sources, including intercepted communications in which Iranian officials were heard complaining to one another about stopping the program, the American intelligence officials decided they had to change course, officials said. While enrichment activities continued, the evidence that Iran had halted its weapons program in 2003 at the direction of the supreme leader, Ayatollah Ali Khamenei, was too strong to ignore, they said.

[snip]

Intercepted communications of Iranian officials discussing their nuclear program raised concerns that the country’s leaders had decided to revive efforts to develop a weapon, intelligence officials said.

That, along with a stream of other information, set off an intensive review and delayed publication of the 2010 National Intelligence Estimate, a classified report reflecting the consensus of analysts from 16 agencies. But in the end, they deemed the intercepts and other evidence unpersuasive, and they stuck to their longstanding conclusion.

Risen goes on to lay out all the other intelligence we’ve got on Iran, as well as the significant failures that have set intelligence efforts back: we’ve got radar and satellite imagery of suspected nuke sites, clandestine electromagnetic and radiation sensors, and information from IAEA inspectors. We don’t have much HUMINT, in part because of an email error in 2004 that exposed our assets, in part because of aborted defection of Shahram Amiri in 2009, and in part because we don’t have an embassy to house people working under official cover. We’re trying hard, Risen said, to avoid relying on information from MEK via the Israelis, having learned our lesson from Ahmed Chalabi in the Iraq war.

But our key tool, it seems, is the wiretapping. In particular, the eavesdropping on just 12 or so top officials who know the program.

American intelligence officials said that the conversations of only a dozen or so top Iranian officials and scientists would be worth monitoring in order to determine whether the weapons program had been restarted, because decision-making on nuclear matters is so highly compartmentalized in Iran.

I wonder how the assassination of at least 4 Iranian nuclear scientists has circumscribed the intelligence we can gather from wiretaps?

In any case, that seems to be what the decision to go to war or not comes down to: these 12 Iranians speaking into our wiretaps.

Bill Keller Blames Leak Arrests that Preceded WikiLeaks on WikiLeaks

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Bill Keller has another narcissistic column attacking Julian Assange. The whole thing is rubbish not worth your time, but I did want to unpack the complaint with which Keller ends his column.

“A lot of attention has been focused on WikiLeaks and its colorful proprietors,” Aftergood told me. “But the real action, it turns out, is not at the publisher level; it’s at the source level. And there aren’t a lot of sources as prolific or as reckless as Bradley Manning allegedly was.”

For good reason. The Obama administration has been much more aggressive than its predecessors in pursuing and punishing leakers. The latest case, the arrest last month of John Kiriakou, a former C.I.A. terrorist-hunter accused of telling journalists the names of colleagues who participated in the waterboarding of Qaeda suspects, is symptomatic of the crackdown. It is this administration’s sixth criminal case against an official for confiding to the media, more than all previous presidents combined. The message is chilling for those entrusted with keeping legitimate secrets and for whistleblowers or officials who want the public to understand how our national security is or is not protected.

Here’s the paradox the documentaries have overlooked so far: The most palpable legacy of the WikiLeaks campaign for transparency is that the U.S. government is more secretive than ever. [my emphasis]

The Obama Administration has charged 6 people with some kind of espionage charge for leaking:

  • Thomas Drake was indicted on April 10, 2010, just days after the release of the Collateral Murder video and before Bradley Manning first contacted Adrian Lamo; he was charged for purported leaks going back to February 2006
  • Shamai Leibowitz was first investigated in mid-2009, before Manning leaked anything to WikiLeaks; he was charged on December 4, 2009 and sentenced on May 24, 2010, the day the government was first learning about Lamo’s conversations with Manning
  • Stephen Jin-Woo Kim was indicted on August 19, 2010, around the time DOD first started trying to figure out what Manning allegedly sent to WikiLeaks; he is alleged to have leaked in June 2009
  • Manning was arrested on May 29, 2010 and will be formally charged this week for leaks allegedly starting in November 2009
  • Jeffrey Sterling was indicted on December 22, 2010, around the time the government was trying to pressure Manning into testifying about Assange; his leaks allegedly started in 2001
  • John Kiriakou was charged on January 23, 2012 for leaks dating back to 2007

All the non-WikiLeaks leaks allegedly took place before Manning’s. All were formally charged before Manning, and all but two men were arrested before Manning.

And yet Bill Keller, in a demonstration of his typical reporting skill though not Newtonian physics, suggests that WikiLeaks caused the crackdown on leaks.

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Did John Brennan’s Leak Hypocrisy Catch Up to Him?

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In his interview with Jason Leopold in May 2010, Jon Kiriakou explained how his book got approved by the CIA Publication Review Board. He describes someone who–given the mention of the transition team and the seniority at CIA–must be John Brennan, advising him to wait to resubmit his book until after the Obama Administration cleaned out the CIA.

Kiriakou: I called a very senior CIA officer, former CIA officer, who was very quietly supportive of me.

Leopold: Can you identify that person?

Kiriakou: I can’t, unfortunately. But he said, ‘I’m on the Obama transition team. We’re going to win this election next week. And we’re going to be making wholesale changes over there. Everybody’s gonna go. So make your changes and don’t resubmit until I tell you to.’ A week later Obama wins. About six weeks pass, Director Hayden resigns. Several people a layer or two, three layers beneath him also resign, My friend calls me back and says ‘resubmit it.’ This is immediately after Panetta is named Director. I resubmitted it. A week later, I got a one page letter saying ‘the book is cleared in its entirety.’

So not only was this guy who appears identical to John Brennan “quietly supportive
of Kiriakou,” but this John Brennan lookalike also played a key role in getting Kiriakou’s book approved.

Which is mighty interesting, because John Brennan was also centrally involved in this investigation, particularly in the hiring of Pat Fitzgerald in March 2010 to respond to CIA’s demand for IIPA charges.

According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba.

Justice officials did not share the CIA’s security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.

The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.

That resulted in the meeting and ultimately to Mr. Vieira withdrawing from the probe.

Now, I’m not suggesting that Kiriakou was targeted just to get back at John Brennan.

But I am saying that it is–at the very least–ironic that a world class leak hypocrite would be supportive of the guy who got nabbed in this investigation.

On the one hand, after all, Brennan had an antagonistic role with at least one of the whistleblowers the Obama Administration has targeted.

Yet, at the same time, he’s a noted leaker himself, such as for the breathless account of the Osama bin Laden targeting, and, more recently, providing on the record details that the Administration had declared a state secret.

The CIA got their IIPA charge. I’m not sure whether Kiriakou is the guy everyone thought they’d get.

William Welch, Jeffrey Sterling, and the Sixth Amendment

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As Josh Gerstein reported, the government has submitted a filing in its appeal of some rulings in the Jeffrey Sterling case that reveals a little more about their reason for appealing. The key detail is that the government considers two people, about whom the government withheld impeachment information, so critical to their case that without them, the prosecution would be “terminated.”

The second issue on appeal relates to the district court’s decision to strike two of the government’s witnesses as a sanction for the late disclosure of alleged impeachment material related to those witnesses. This decision was rendered orally at a pretrial hearing and is based on factual conclusions concerning the weight and necessity of the government’s evidence and the history of discovery in this case. The district court’s decision to strike these witnesses effectively terminated the prosecution.

In order to adequately respond to the district court’s decision, the government believes it is necessary to explain the government’s extensive discovery efforts (much of which involved the review and disclosure of classified information); the import of the alleged impeachment material at issue and the ways in which Sterling proposes to use it; and the ways in which the two witnesses are important to the government’s case. The government must also address the effect of precedent from the Supreme Court and from this and other circuits concerning a district court’s limited authority to strike witnesses as a sanction for an alleged discovery violation. [ my emphasis]

I have suggested that one of these witnesses likely leaked classified information, but was not prosecuted for it. If I’m right that this is one of the witnesses that Judge Leonie Brinkema struck, consider what it means: that one of the most critical witnesses in this case also disclosed classified information (behavior, Sterling asserted in a filing, that was “more egregious” than what he was alleged to have done).

The government is preparing to argue that this may not amount to impeachment information. Presumably, they’re also going to offer some excuse for how they didn’t manage to find and turn over this information until shortly before the trial.

And this witness is crucial to the government’s case.

Now couple all that with one of the other disputes at issue: the government wants to withhold the real names of 10 CIA witnesses–not just from the jury, which I understand to a point. But also from Sterling himself.

The third issue on appeal relates to the district court’s decision to require the government to disclose to Sterling and the jury the true names of government witnesses who are covert CIA officers or contractors. This decision was rendered orally at two pretrial hearings, and requires a close familiarity with the extensive procedural history concerning the discoverability and admissibility of the witnesses’ true identities (which are classified).

Now, the government claims these two efforts aren’t that closely related–“each of [these appellate issues] is almost entirely distinct from the others.” Yet is that really true? The government, either by accident or intent, tried to prevent Sterling from learning details about two key witnesses against him. And it is also trying to prevent him from tying the people testifying against him to actions he probably knows firsthand, from his time at the CIA–if not from this late-produced discovery information.

It sure looks like the government is trying to play games with evidentiary issues to eliminate the Sixth Amendment. Typical William Welch.

Why Is William Welch, Whose Team Is Accused of Intentional Prosecutorial Misconduct, Still at DOJ?

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As Nedra Pickler first reported, Judge Emmett Sullivan has submitted a scathing order describing the results of an investigation into the Ted Stevens prosecution.

Based on their exhaustive investigation, Mr. Schuelke and Mr. Shields concluded that the investigation and prosecution of Senator Stevens were “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

[snip]

Mr. Schuelke and Mr. Shields found that at least some of the concealment was willful and intentional, and related to many of the issues raised by the defense during the course of the Stevens trial. Further, Mr. Schuelke and Mr. Shields found evidence of concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed – at least to the Court and to the public – but for their exhaustive investigation.

Sullivan’s investigator, Henry Schuelke, found the lawyers involved could not be charged with criminal contempt because they had not been explicitly ordered to follow the law.

Mr. Schuelke bases his conclusion not to recommend contempt proceedings on the requirement that, in order to prove criminal contempt beyond a reasonable doubt under 18 U.S.C. § 401(3), the contemnor must disobey an order that is sufficiently “clear and unequivocal at the time it is issued.” See, e.g., Traub v. United States, 232 F.2d 43, 47 (D.C. Cir. 1955). Upon review of the docket and proceedings in the Stevens case, Mr. Schuelke concludes no such Order existed in this case.

But he did hint that at least some of the six attorneys might be charged with Obstruction of Justice (which DOJ would have to do).

Mr. Schuelke “offer[s] no opinion as to whether a prosecution for Obstruction of Justice under 18 U.S.C. § 1503 might lie against one or more of the subject attorneys and might meet the standard enunciated in 9-27.220 of the Principles of Federal Prosecution.”

One of the attorneys investigated here, of course, is William Welch (the others are Brenda Morris, Edward Sullivan, Joseph Bottini, and James Goeke, as well as Nicholas Marsh, who committed suicide last year), who has overseen the Jeffrey Sterling and Thomas Drake cases.

Now, Sullivan made it clear that at least some of the lawyers involved might be well served for Schuelke’s report to be made public.

in fact, under these circumstances, some or all of the subjects may be prejudiced by withholding the results of Mr. Schuelke’s Report from the public;

So we can’t be sure whether Welch was directly implicated in the misconduct, or whether just those lawyers who reported to him were.

But Welch’s prosecutions since have been beset by the same kind of prosecutorial problems as the Stevens one. For example, in the Drake case, the government didn’t tell the defense that one of the documents they charged Drake with leaking was unclassified until 10 months after the indictment. Then, when they tried to apply CIPA to unclassified documents, they did so after the opportunity to object had passed. The judge in that case, Richard Bennett, called the prosecution “unconscionable.”

And in the Sterling case, it appears that Welch postponed telling Sterling that one of the key witnesses against him had herself leaked classified information until after the opportunity for discovery on that leak had passed–the same kind of derogatory information on a key witness the Stevens prosecutors withheld.

In other words, we can not be sure that Welch committed the misconduct at the heart of the Stevens case. But his ongoing cases do seem to be subject to the same kind of misconduct.

So why is he still at DOJ, prosecuting cases, when an independent investigator has determined this his past prosecution teams didn’t follow the law because they had not been specifically ordered to, and such behavior might amount to Obstruction of Justice?

Updated: Added Bennett’s comments.

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.

John Rizzo Latest Target for DOJ Probe into Leaking

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It pains me to defend John Rizzo. After all, his willful dumbness–or more likely, outright deceit–played a key role in our country’s approval of torture.

Still, I have mixed feelings about investigating–and probably reprimanding, but not prosecuting–him.

The Justice Department is investigating whether a former top U.S. intelligence official, John Rizzo, improperly disclosed classified information about the CIA’s drone campaign, one of the spy agency’s most secretive and politically sensitive programs.

People familiar with the matter say that the CIA’s general counsel’s office opened the probe in March, shortly after Newsweek published an article in which Rizzo — who had retired in 2009 after serving as the CIA’s acting general counsel — outlined an array of specific details about how CIA officials choose terrorists for drone strikes and which American officials sign off on actually carrying them out.

[snip]

Investigations into current or former senior CIA officials like Rizzo are exceptionally rare, and people familiar with the investigation said they expected this one to end with some sort of formal reprimand, and possibly a financial penalty such as a decrease in his government pension, rather than with his imprisonment. Until the Justice Department decides what it wishes to do, however, the CIA cannot take any action.

Rizzo may have spoken on the record for this article out of pique that his torturers, but not Obama’s drone killers, had come under criticism (plus, I’d dispute that the drone strikes haven’t come under criticism).

But this kind of information is actually crucial for citizens in a democracy to know:

How CIA staffers determine whether to target someone for lethal operations is a relatively straightforward, and yet largely unknown, story. The president does not review the individual names of people; Rizzo explains that he was the one who signed off.

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