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Merlin’s Testimony: “It’s Lie,” “I Don’t Remember,” and “I Don’t Know”

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I’ve finally gotten a hold of the transcript for Merlin’s testimony in the Jeffrey Sterling trial (working on getting something I can post; he was apparently difficult to understand, in any case, so not even people present understood all this).

Reading it, it’s clear why the government has claimed, going back to 2011, that Merlin’s imminent death from cancer meant he should not testify. I don’t dismiss the gravity of his health problems (and also note that he is apparently on pain killers, including Oxycontin, which may have affected his testimony here). But he was a terrible witness, and pretty clearly lying on a great number of accounts.

But I’m interested in specifically how he denied things that appear either in James Risen’s book or in CIA cables.

It’s lie

About two things, Merlin was adamant. The first is the same thing that really elicited the Merlins’ ire when they read Risen’s book: the report that they were defectors.

Trump: It says you defected to the United States. Is that accurate?

Merlin: It’s lie.

Note, given the timing and the claim that Merlin might have been involved with the Soviet Union’s 1980s-era nukes, I entertain the possibility that they defected to some other country before moving to the US in the early 1990s. That’s true, especially, because when Merlin got his passport renewed in 1999, he did so from a country the name of which got substituted (meaning it probably wasn’t Russia; the original appears to be 9 characters long, so Ukrainian is a possibility), though it could just be a successor state. Whatever the case, the timing of the Merlins’ arrival in the US and their certainty with which the government repeatedly said they did not defect convince me that Merlin is correct here: they were not defectors.

Similarly, Merlin is equally adamant that the description in Risen’s book that Merlin tried to warn the Iranians of “flaws” in the blueprints he handed them was not true.

Trump: In paragraph 64, the book represents on page 205 that the letter was warning the Iranians as carefully as you could that there was a flaw somewhere in the blueprints. … Was that the purpose of the letter?

Merlin: It’s, it’s lie. [Later] I don’t see flaws here. It was just incomplete information.

While it’s certainly true that Merlin’s and the government’s understanding of the significance of the incomplete information in the blueprints was very different — elsewhere Merlin claimed that a real fireset schematic was “100 times more complicated than it was shown in drawing and the schematics” — it is also true that Merlin appears not to have known about the deliberate flaws US scientists put in the blueprints. So he is correct that the representation in Risen’s book is incorrect on that point.

I don’t remember

Then there are a series of questions about which Merlin likely feels some shame, about which he professed not to remember the correct answer. One of those topics pertained to whether his wife also spied (note, Merlin and the CIA both are almost certainly lying about how much Mrs. Merlin knew about this operation).

Trump: Did your wife at the time also agree to cooperate with the CIA?

Merlin: No.

Trump: Did she eventually?

Merlin: She didn’t know anything about it.

Trump: She didn’t know anything about what you did, is that correct?

Merlin: Yes.

Trump: But she was interviewed from time to time by the CIA as well?

Merlin: I don’t remember. Probably.

Merlin’s wife remained on the CIA payroll after he claims he stopped getting paid. Surely he knows that. But he’d prefer not to admit it.

Another of the topics about which Merlin forgot the correct answer came in response to a defense question about whether he ever used his American PO Box in communications with Iranians.

MacMahon: Did you testify earlier today that in all of your communications with the people, the Iranian institutions or otherwise, that you, you didn’t use any kind of an American address in any of those documents?

Merlin: I don’t remember.

Now, it’s possible Merlin’s earlier answer on whether he had used his PO Box on correspondence with Iran is correct: that is, it may be that he always ignored CIA’s orders to do so, and CIA simply never found out about it (perhaps in part because the case officer before Sterling did not track that correspondence as closely as Sterling did). But the CIA record shows that he first started balking about using his actual geographic location about a year before going to Vienna, but before that had publicly used his PO Box.

I don’t know

Then there are a series of questions where Merlin clearly either had forgotten key details, or wanted to avoid admitting the truth.  For example, when asked by prosecutor Jim Trump (who had met with Merlin before this deposition to go over it) whether this was a rogue operation, Merlin first offered up that it was a “brilliant” operation (elsewhere he took credit for Iran not have gotten nukes since 2000).  But when asked a question to which the answer is clearly yes — whether it took significant persuading for Merlin to complete this operation — he claimed he didn’t know.

Trump: It states that prior — prior to your trip to Vienna now is what is being discussed here. “It had taken a lot of persuading by his CIA case officer to convince him to go through what appeared to be a rogue operation.” Is that accurate?

Merlin: It was not rogue operation at all. It was brilliant, brilliant operation.

Trump: Did it take a lot of persuading by you — excuse me, by your case officer to go through with the operation?

Merlin: I don’t know.

Merlin walked out of the meeting on final preparations, after having walked out of the meeting prior. That wasn’t, apparently, because Merlin cared whether this was rogue or not, but because he thought the risk to him was too great for the money he was being paid. But the answer to whether it did take persuading should have been yes.

Just as interesting, when Merlin was asked by defense attorney Edward MacMahon whether he had ever before this deposition told the FBI or CIA he had destroyed the disk on which the final version of the letter to the Iranians, he said he didn’t know.

MacMahon: The first time you–you were, you were asked questions over, over a space of many years, and you never told the FBI at all that you had destroyed the disk that you took to Vienna, did you?

Merlin: I don’t know, but there was, was no reason to bring it back. It just put myself in additional danger to have such disk in possession. If somebody stop me and read this disk, I’m in trouble.

MacMahon: Okay. But you didn’t tell the FBI, you didn’t tell anybody until today as a matter of fact that that’s what your story was as to what you did with the disk in Vienna, correct?

Merlin: I don’t know, but again, it was no reason to keep this disk when action was, operation was accomplished, and no reason to keep it as a drawing, as letter, as whatever.

The answer is clearly no, but Merlin doesn’t want to admit that for some reason (I’ll return to the significance of this question in a future post).

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Merlin Was Reading James Risen in 1999

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On March 16, 1999, Jeffrey Sterling met with Merlin, the Russian scientist Sterling was trying to get to establish ties with Iran so he could hand off a nuclear blueprint. (Exhibit 22) Merlin seemed to be getting impatient — and perhaps a little insulted — that the Iranians he was approaching weren’t showing more interest in his 20 year experience as a Russian nuclear engineer. So he made an utterly bizarre suggestion.

[M] then suggested that in some of his future messages, he may make mention of the recent revelation that another country had secured nuclear secrets from the U.S. [M]’s reasoning was that others now see that it is possible to obtain nuclear secrets which can advance their programs, and that the project can build upon that supposition to entice the Iranians. [Sterling] lauded [M] for his thinking but said some thought would need to be given to such a proposition prior to [M] implementing it.

Merlin has to be referring to the stories about Wen Ho Lee which started appearing on page one of the NYT starting on March 6, 1999. (Remember, too, that Merlin lived in the NY area, so if he read this in the dead tree version — as most people still read newspapers in 1999 — he most likely read it in the NYT.)

Those stories were written by James Risen.

Which is strong evidence that Merlin was reading Risen as far back as 1999.

Merlin’s suggestion — that he, a CIA asset, entice Iran to accept his Russian blueprint by pointing out that China had allegedly jump-started its own nuclear weapon program by stealing blueprints from the US — reveals just how unclear on the concept of the operation Merlin was. After all, it had to have been suspicious enough to Iran that a Russian who had moved to the US was seeking to deal blueprints (it’s unclear whether the blueprints were ultimately in English or Russian). Any suggestion that the Iranians would thereby be getting US, as opposed to Russian, technology should have alarmed them greatly.

It’s also, of course, a bizarre commentary on the arc of Risen’s career, that the main character in a future book of his would be monitoring nuclear developments by reading Risen. Risen, of course, managed to protect his sources in both cases, in a series that unfairly identified Wen Ho Lee as a Chinese spy and in a book that raised real questions about what our nuclear establishment was doing.

I’m still waiting for Merlin’s transcript on this point, but his wife was asked whether she and her husband knew of or knew Risen. “I start to know about Jim Risen after he wrote the book,” Mrs. Merlin testified on the stand in her imperfect English. She went further, asserting that her husband did not know (it’s unclear whether she meant “of,” or “personally”) before, either. Given how much of the Wen Ho Lee story was driven by Risen between March 6 and March 16, 1999, Merlin probably had known “of” Risen for years before Risen started reporting on the operation that we now refer to by Merlin’s codename.

And yet, I’m fairly certain, the fact that Merlin offered up Risen reporting to the man now convicted of having leaked to Risen, Jeffrey Sterling, 4 years before that leak began, never got mentioned at the trial.

CIA’s Merlin Was Arranging Fake Nuclear Deals on an AOL Account Shared with His Wife and Kids

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CIAWitness after witness in the Jeffrey Sterling trial made claims about how closely held the program was. “More closely held than any other program,” Walter C, a physicist who worked on the program described. “More closely held,” David Shedd, currently head of the Defense Intelligence Agency and head of Counterproliferation Operations until just after the Merlin op, said.

Of course, Bob S’ admission that — when FBI showed him a list, in 2003, of 90 people cleared into the program, he said it was incomplete — suggests all those claims are overstated.

But the details of just how careless the CIA was with Merlin’s identity raise further questions about claims that the operation — and especially Merlin’s identity — was closely held. Most striking to me is the revelation (Exhibit 17) that for months and months, Merlin was pitching his nuclear experience to Iran on an AOL account shared with his wife and kids. In the cable describing a January 12, 1999 meeting with Merlin (what appears to be the first where the two met alone) Sterling explained that Merlin had just opened a separate Hotmail account to use for his CIA spying.

“[M] also opened another email account through Hotmail. [M] opened the new account so his family, who also utilizes his AOL account, cannot access his email related to the project.”

That means from at least April 15, 1998 (see Exhibit 8, though Exhibit 16 suggests the effort started in November 1997), when Merlin started trying to make contact with Iranians who might be interested in a Russian nuclear scientist, until January 1999, Merlin’s contacts with Iran were completely accessible to his wife (who, given the evidence — as opposed to the sworn claims — presented in the trial, almost certainly knew anyway) and his kids (who may not have).

The AOL to Hotmail account switch appears to have been Merlin’s idea, but Sterling’s performance review for this period (Exhibit 60; note, it uses the name Samuel Crawford to protect Sterling’s identity) seems to reflect Sterling’s effort to train Merlin out of bad security habits. It says Sterling, “maintained a strong [counterintelligence]/security posture in all that he did during the reporting period, particularly a high interest sensitive case … and is constantly seeking to improve the security of his cases.” Indeed, the same cable covering the January 12, 1999 meeting in which Merlin and Sterling alone took part — which revealed Merlin had finally gotten a dedicated email account for his CIA work — also described Sterling walking Merlin through changes to his handling approach, including apparently meeting in hotel rooms rather than primarily restaurants all in the same neighborhood. Sterling also appears to have had to prompt Merlin to share all his correspondence with the Iranians with him (though Merlin didn’t always do so).

The CIA, it appears, intended for Merlin’s real identity to be readily obvious to the Iranians (and, based on the presumption at the heart of this operation that the Iranians were working closely with Russia, also to the Russians). On several occasions, defense attorneys asked CIA witnesses if they were “dangling” Merlin, a term the witnesses clearly wanted to avoid repeating. Nevertheless, it is clear they intended to dangle him, barely hiding his identity or location. Merlin used his real name in his outreach to Iran. He cited “his true background” in messages to Iranians (Exhibit 16; note that in Exhibit 17 and 18, CIA has actually redacted some of the information on himself Merlin sent to Iranians). He used his home email address in classified ads (and changed it when he got the Hotmail account). His approaches used a PO Box that appears to have been close to his home. (Exhibit 16)

Then there were other issues that raised alarms for me. From roughly October 12, 1998 through December 10, 1998, spanning the period when Merlin went to San Francisco for his “training” on the blueprints, Merlin’s home computer was being repaired (he accessed some email from work). When he got the computer back “it seemed slower.” Shortly after Merlin got the new email (Exhibit 18), he told Sterling he had been blocked out with an “Intrusion detected,” warning, and had been told “evidently at least two people had tried to open the account.” In February 1999 (Exhibit 21), Merlin told Sterling he was having problems with his AOL account (though didn’t explain what sort). Then there’s the period in October and November 1999 when Sterling couldn’t contact Merlin; he said he was visiting his wife in Florida. Admittedly, Sterling was tracking this stuff closely (I wonder whether the government had Merlin on what amounted to a consensual wiretap). Because the government only released cables from the period when Sterling handled Merlin, however, we can’t know whether the earlier, sloppier operational security extended to Merlin’s online life.

And ultimately, this loose operational security — and Merlin’s backlash to it — appears to be one of the things that led Merlin to botch the operation, to (apparently) give Iran what was meant to look like a sales proposal with no way for Iran to contact him.  A full year before the delivery (Exhibit 18) Merlin started using initials rather than his name in correspondence with the Iranians. He balked at the CIA’s insistence that he send a (slightly doctored) resume along with his outreach attempts. He started sending related letters via separate envelopes, even sending them from separate states (CIA doesn’t appear to want to hide that Merlin was in a position to send letters from both New Jersey and Connecticut).

It was very clear that Merlin did not want his identity associated with the documents in question and — because CIA had decided to have him finalize the letter on his own in Vienna — he chose not to leave much of it with the package. He left off his PO box from the package, which was how the Iranians were supposed to respond, which was one key to any ongoing intelligence gathering aspect to the operation. The CIA had Merlin leave a sales pitch with no way for interested buyers to act on that sales pitch.

And yet they called this operation a big success.

As the Senate Intelligence Committee’s report (Exhibit 101) on Jeffrey Sterling’s whistleblower complaint describes, “In the end, the entire plan was turned over to the Iranians without any means for further follow up. However, CIA supposedly deemed the operation a success.”  The government repeatedly claimed Sterling lied or spun facts to get the SSCI and Jim Risen interested in this story. But on this point — that Merlin left a nuclear blueprint wrapped in newspaper without an address to follow-up with — Sterling was absolutely correct.

Merlin: Both Russian Engineers Had Problems with the Blueprints

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As I suggested in my response to Walter Pincus’ laundering of false claims about the evidence presented at the Sterling trial, DOJ went to great lengths to help CIA try to rebut claims made in James Risen’s book about the blueprints handed over to the Iranians.

Most importantly, by confusing the issue of “incomplete” plans with “flawed” plans, they suggested no one — not Merlin and not Jeffrey Sterling and not anyone else — should have a concern about the nuclear blueprints Merlin wrapped in a newspaper and dropped in a mailbox. They mean something very limited by that: that no one identified the flaws CIA purposely put into the plans to ensure they wouldn’t work.

There are several concerns with that:

  • Merlin’s concerns, both nuclear and operational
  • Human Asset 2’s concerns
  • Problems with their logic

I’m going to bracket Merlin’s concerns for the moment (DOJ seems unenthused about answering my questions on where I can get a transcript of Merlin’s testimony).

But there are plenty of reasons to be concerned for other reasons, too.

HA2’s minor details

First, there are potential concerns raised by the other Russian nuclear engineer, referred to as Human Asset 2, who provided the plan for a 1980s-era Russian fire set to the US in the first place. Scientists at a national lab reverse engineered it, then added in a bunch of flaws that would purportedly prevent the Iranians from being able to use it.

Walter C, who worked at the national lab, described working with the Russian and claimed that — in a series of four meetings at which he apparently did not have much time with the blueprints — he found nothing wrong with them. “It looked credible to him,” Walter C claimed on the stand.

Except Human Asset 2 does appear to have had some concerns. In a cable dated November 25, 1998, Bob S passed on information to the New York and one other office passing on what appears to be Walter C’s message that the two parts Merlin had identified to be missing from the fireset were not supposed to be included.

As we had suspected, the inclusion of certain assemblies on the parts list but not on the schematic was indeed intentional, with the goal of suggesting that the anonymous fireset designed knew that these two assemblies … were essential, but did not know how to make or spec them in any detail.

[snip]

Please advise [M] of this outcome and suggest that he plan to acknowledge this omission in his eventual presentation to the Iranians if they ask about it.

But the cable went on to reveal that there were other “minor details” that Merlin and HA2 — the original Russian designer of the fireset plans — had raised.

[Mr. G] is still authorized to travel to [the lab] to meet with members of the fireset team to look into some other minor details of the plans which M and [HA2] have noticed or questioned. But per agreement between CP officers and [Mr. C] we will make no changes to the plans and lists until a serious discrepancy arises.

In other words, HA2 may have said, on quick review, that the plans looked credible (at this point, Merlin had examined the plans for what appears to have been an even shorter period of time). But he did, at least, have questions, which is not something Walter C offered up in his testimony.

The Red Team’s 5-month 3-month nuclear project

Then there are other problems in their claims the blueprints wouldn’t be usable. In his testimony, Walter C described how a Red Team of the lab’s nuclear scientists — with 200 years of combined experience! Walter C boasted, as if that were a meaningful stat — tried to find flaws and use the blueprints themselves. While the team only found 25% of the flaws, Walter C claimed, they were able to get it to work in what in testimony (at least according to my notes) was just 5 months.

Only that’s not what the cable said. It said,

After three months of intense effort, and by finding and fixing [some of the] design flaws, the team was able to get a breadboard version of the fire set to work in a laboratory setting.

That’s not the same as using it for a nuclear weapon (as the cable goes onto explain), but at least by my hearing, Walter C misrepresented how long it took the lab to get these flawed blueprints to work.

The mixed assumptions about Russian involvement

Finally, there’s the other way witnesses — especially Walter C — dismissed concerns that the Iranians might be able to use the blueprints. The entire premise for using a Russian blueprint (albeit integrating American and Japanese parts) to distract the Iranians was the Russian brain drain: after the collapse of the Soviet Union, Iran started recruiting newly unpaid scientists. “They had websites looking for areas of WMD concern,” Bob S testified.

Thus, as they tried to build a fireset that the Iranians couldn’t use, they factored in that and “assumed assistance of Russian scientists.”

The export control approval (Exhibit 26) caveated that “in the very remote possibility that the end user can acquire the critical specifications intentionally omitted from the design, and if the user can also acquire the necessary fabrication technologies to successfully fabricate a fully functional device, the end product would then be subject to the above controls.” If the Iranians had access to Russian engineers, as assumed, how could the US be sure they couldn’t use this?

Meanwhile, the enabling technology letter (Exhibit 28) assumes the Iranians had more expertise than claims about their 1950s era nuke program may have let on. The enabling technology approval letter assumed that “User already has a basic understanding of either commercial or nuclear fireset design.”

We don’t have enough data to assess either of these claims (though Walter C’s credibility should be taken about as seriously as his claim that he is “only vaguely” aware of the 2007 NIE finding that Iran had no nuclear weapons program as of 2003). But there seems to be a logical problem with the claims surrounding the plan, that assume both that Iran has access to Russian know-how but that it also doesn’t have access to such know-how.

What Did David Shedd Know and When Did He Know It?

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Deputy_Director_of_the_Defense_Intelligence_Agency_(DIA),_David_R._SheddAs I’ve said, I’m working on a larger post about what a shitshow the evidence entered into the Jeffrey Sterling trial showed the Merlin operation to be.

But before I do that, I want to look closely at how David Shedd’s sworn testimony (which according to him, he practiced with prosecutor Jim Trump three times before appearing) contradicts a detail in one of CIA’s cables, because I think it goes to the crux of CIA’s efforts to spin this as a successful program.

Before I do that, let’s review his background. From 1997 (just as the Merlin op started) until March 2000 (literally when the part that shows up in Risen’s book ends), Shedd was the Chief of Operations in the Counterproliferation Division. From March 2000 until February 20, 2001, he was CIA’s head of Congressional Affairs. Then, for over four years, he worked on proliferation issues at the National Security Council. On the stand, Shedd claimed that the NSC provided “real oversight” of intelligence. From 2005 until 2010, Shedd worked in the Office of Director of National Intelligence, ultimately as Deputy. Then he moved to the Defense Intelligence Agency, where he’s now the Acting Director.

In other words, Shedd had a supervisory role over the Merlin program until Merlin handed over the blueprints. Then, after a stint working with Congress, he helped Condi invent her mushroom clouds and was one of the people at NSC cleared into the program when, in 2003, Dr. Rice convinced NYT to kill the first Risen story.

In spite of his potential conflicts, Shedd ended up being the guy who provided a leak assessment for Chapter 9 of Risen’s book for Director of National Intelligence John Negroponte in 2006 (see page 11). Curiously, two parts of that leak assessment are redacted, meaning they have nothing to do with the Iranian op (though it could relate to the other countries CIA used Merlin to deal blueprints to, or to the exposure of all CIA’s Iranian sources described in the chapter).

The prosecution specifically asked Shedd how he was kept informed about the Merlin project. He said Bob S kept him informed in conversations, providing updates “as often as necessary,” and that he, Shedd, might see cable traffic. He also described relying on the National Lab’s assurances that the blueprints Merlin was handing over to Iran could not help their program. “As a non-specialist myself, I had to rely on those with a nuclear specialization.” (Almost all the CIA witnesses involved in Merlin said something similar, and they had really bizarre views on engineering expertise, which might be one reason the program ended up being a clusterfuck.)

Having laid out that background — particularly the bit about briefing in “conversations” with Bob S (who himself testified the CIA writes everything down) — I find a series of Shedd’s responses to Sterling attorney Edward MacMahon particularly interesting.  “You know the nuclear blueprints were delivered in a newspaper?” MacMahon asked. “I don’t know,” Shedd, one time advisor to both Condi and Negroponte responded. “You don’t know any details about how the blueprints were delivered?” MacMahon persisted. Merlin “had established contact through letters, he then had a meeting with the person in Vienna,” Shedd responded.

Of course, that’s wrong.

Even according to Bob S’ favorable description of the program, Merlin didn’t meet with anyone in Vienna. He just wrapped nuclear blueprints inside a newspaper with both a computer-written and a handwritten note of quasi-explanation and left them in a mailbox, apparently having taken his PO Box for further contact off the letter. So why was David Shedd — who had a supervisory role over this operation (what Bob S himself called one of the “Generals” who played a key “check and balance” over the program) and then went on to brief Condi and Negroponte on it — misinformed about such a critical detail of the case?

I find Shedd’s statement particularly interesting given that he is named in one of the two cables submitted into evidence on the outcome of the operation.

On March 10, 2000, Bob S wrote a cable (Exhibit 44; he claims Sterling may have been sitting at the next terminal while he wrote it), to Langley and CIA offices 5, 7, and 8.

Having finally located the mission after several very obvious searches in the vicinity, [M] at one point noted that there was someone in the office, but on that occasion he had not brought the document package with him. When he returned on two subsequent days he found the office unoccupied and finally left the package, very clearly addressed to [Iranian subject 1], in the locked mailbox right outside the mission door.

Much of the rest of the cable described what a hash Merlin had made of his delivery in Vienna, even describing Merlin’s “inability to follow even the simplest and most explicit instruction” (Bob S did leave some damning details out, and that assessment did not prevent Bob S from proposing the use of Merlin to do similar operations with other countries within a month).

Then, on March 13, 2000, Bob S wrote another cable (Exhibit 3) to CIA offices 9, 7, and 8, New York, and office 5 for information. Like the previous cable, it was titled “Mission Accomplished.” It asked those offices for any sign of an Iranian response to the blueprints. While the cable didn’t provide as much detail about what a bumbler Merlin was, it did explain,

Our asset visited the Iranian mission facility several times, but did not find any one present in the office on 2 or 3 March during his visits. He accordingly placed the packet in the locked mail box immediately adjacent to the door of the mission inside its host building at 19 Heinestrasse in Vienna’s Second District.

In this paragraph and in others, there’s significant spin. In this paragraph, for example, Bob S doesn’t reveal that Merlin did show up one day to find someone in the office, but claimed at the time he didn’t have the packet with him. But it does reveal a detail Shedd says he doesn’t know: that Merlin never actually met with any Iranian.

Now, it’s a tearline document, meaning the people in each of those offices are supposed to direct the information below the tear line in the cable to specific recipients within the office. The only thing most readers would see is an above line summary, one line of which is redacted here. But this is a document David Shedd signed off on the release of:

Screen shot 2015-01-29 at 8.25.34 PM

Of particular note, given that Shedd may have briefed other superiors about the program, when George Tenet talked James Risen out of reporting the story in 2003 (page 10), he said, “the Russian involved introduced himself to the Iranians [two words redacted].” Did Tenet tell Risen he introduced himself in person, as Shedd claims to have believed?

Now to be fair, one more cable Shedd signed off on (Exhibit 16) described a plan, dating to 1998, to have Merlin meet directly with the Iranians. So it’s possible Shedd simply remembers the operation as it was supposed to be, and not as Merlin’s bumbling execution carried it off.

I’m not sure what to make of the later cable, though. Perhaps Shedd never read beyond the tearline — though that would raise real questions about his level of knowledge of the operation and the “General’s” oversight over it generally. Perhaps he was on his way out of CPD and didn’t read that closely. Or maybe he didn’t sign off on the release of it at all.

But it does seem to suggest that, before Shedd left CPD, he was involved in a cable that made it clear that Merlin just left the nuclear blueprints in a mailbox. And yet the story Shedd now tells, and perhaps told Condi and Negroponte, is the story of the operation as it was meant to be, not as it was actually conducted.

Walter Pincus’ Great Intelligence Work

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Walter Pincus had a piece yesterday purporting to lay out the inaccuracies in the chapter of James Risen’s State of War. In it, he includes this passage.

In Vienna in late February 2000 to deliver the materials to an Iranian mission to the International Atomic Energy Agency, the Russian, according to Risen’s book, “unsealed the envelope with the nuclear blueprints and included a personal letter of his own to the Iranians. No matter what the CIA told him, he was going to hedge his bets. There was obviously something wrong with these blueprints — so he decided to mention that fact to the Iranians in his letter.”

Risen’s book reprints the letter, saying the Russian later gave the CIA a copy.

The CIA trial witnesses and agency memos tell a different story.

The agency plan always was that the schematics and drawings would have some obvious flaws — and the Russian engineer was told about them. It also was part of the plan from the start that the design materials were to be accompanied by a letter from the Russian noting some errors. A Jan. 10, 2000, CIA memo carries a draft of what it describes as “the letter to be included in the package of material.”

It has elements almost word for word found in the letter as printed in the Risen book, but it was written cooperatively with CIA input and made part of the document package for the Iranians more than a month before the Russian arrived in Vienna.

Now, I think the trial did show that there were some inaccuracies in the book — the one the Merlins cared most about is that they weren’t defectors.

But I find it really curious that Pincus claims these were errors. I say it’s curious because unless I’m mistaken, the transcripts for all the CIA witnesses save Bill Harlow have not been loaded onto the docket and so probably aren’t yet done. And in the 5 of 6 days of testimony I attended (including all but a few minutes of Bob S’ testimony, whom Pincus cites by name), I didn’t see Pincus in the courtroom once. And with the exception of Merlin himself, the CIA witnesses I missed, for the most part, talked about issues other than the Merlin operation. So it’s unclear where Pincus got his understanding of CIA witness testimony, and what he got is inaccurate.

Indeed, in this limited example, Pincus makes two pretty significant errors: in suggesting Merlin was supposed to know about the flaws in (as opposed to the incompleteness of) the blueprints, and in suggesting the CIA is certain about what Merlin left at the IAEA in March 2000.

First, the flaws. Throughout discussions about this operation, there has been some confusion between the flaws and the incompleteness, which has allowed the CIA to push back on the story when in fact the CIA records show this may be a convenient way to claim Risen’s book was wrong when what the CIA thought is meaningless if the Russians still had concerns. While Merlin was told the blueprints were incomplete, he was not told about the flaws the nuclear lab (probably Sandia) put in the blueprints that were supposed to prevent the Iranians from using them (but only held back a national lab team 3 months in using the same blueprints). According to my notes, for example, Bob S said they “didn’t want to say [the blueprints] were intentionally flawed,” to Merlin. Nevertheless, there is reason to believe that Merlin and (far more importantly) the other Russian asset involved in this operation saw what they believed were problems that would make the blueprints not serve the purpose the Russians believed they were supposed to serve, and there is reason to believe that those concerns were never adequately addressed.

In addition, as I noted in this Salon piece yesterday, CIA doesn’t actually have the final version of what Merlin left with the IAEA. They claim — with questionable credibility, which I’ll return to — not to know what was in the formal letter Merlin left. Bob S himself agreed in his testimony that Pincus supposedly reviewed that Merlin is the only person who knows what he put in the final version. At the very least the story the CIA tells is that Merlin took a copy of the letter drafted in conjunction with the CIA to Vienna but with the nuke references altered to make sure he could get through customs (Bob S called it “sanitized”), then changed them back on the hotel computer and printed a fresh copy (note, earlier in this process, Merlin at times sent stuff off to the Iranians before the CIA had a chance to review it, so he had a history of freelancing). He then destroyed the disk he used, meaning no one — according to what Merlin told CIA  — has a copy (though the almost-final version without any last minute changes would reside on Merlin’s poorly secured home computer). Interestingly, Risen’s book says Merlin wrote a report back, but Bob S and Merlin (apparently) claim he did not.

But that printed letter is not all Merlin left with the blueprints. He also left a handwritten letter in his  packet of newspaper-wrapped nuclear blueprints — what Bob S called a “cover note.” The current story — relying on an earlier idea floated during the drafting period but not formally adopted — is that the cover note would help alert the Iranian staffers to the ultimate intended recipient of the letter. But that letter was by all appearances ad-libbed by Merlin. So we only have Merlin’s word for what he wrote.

Now these are just two details — details in Risen’s book that Pincus claims were disproven by cables and Bob S’ testimony — but which were anything but.

I will have a much longer summary of all the other details that came out at trial that made it clear the operation was an even bigger shitshow than Risen’s report makes out. But for the moment, I’m just curious what Pincus is trying to accomplish. Perhaps he was in the back of the courtroom for a tiny part of Bob S’ testimony and neither I nor the several other journalists I asked noticed him. But (at least as far as testimony) it appears he’s working off second-hand claims about what the record says and claiming, falsely, that they specifically disprove Risen’s book.

Why?

Why would whoever provided Pincus this partial view of Bob S’ testimony be so desperate to claim that Risen’s book was proven wrong?

How the Sterling Prosecution Threatens Even Unclassified Tips

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In a piece for Salon, I describe how the government managed to get Jeffrey Sterling convicted of 7 charges under the Espionage Act for one leak. More importantly, I show how the jury’s conviction of him for 2 of those charges — related to “causing” James Risen to write a 2003 NYT story on Merlin that got quashed — may well amount to convicting him for tipping Risen, without sharing any classified information, to the operation.

Here’s the key part of that discussion:

D.C. information brokers should be worried that Sterling faces 80 years in prison based off this circumstantial evidence. All the more so, given the evidence supporting the charge that Sterling leaked to Risen in time for and caused him to write the article Risen told CIA he had in completed draft on April 24, 2003. After all, the only pieces of evidence that the government submitted from before the time when Risen told CIA he had a completed article were the CNN email, phone calls reflecting Risen and Sterling spoke for four minutes and 11 seconds across seven phone calls, and Sterling’s entirely legal discussion with staffers from the Senate Intelligence Committee.

No matter what you think all the later phone calls between Sterling and Risen indicate, short of evidence of a face-to-face meeting in this earlier period, the evidence seems to suggest Sterling was doing something that people in DC do all the time: point an investigative reporter to where she might find classified scoops, without providing those scoops themselves. That’s especially true given the way the CIA’s own notations about Risen’s story seem to track the reporter fleshing out information, from initial outlines of the operation (that happen to map what Sterling told Senate staffers) to, weeks later, inclusion of that elusive document FBI never managed to find. That is, it appears Risen got a tip, possibly from Jeffrey Sterling, but that he spent weeks using his sources to flesh out that tip.

In both the indictment and discussions about jury instructions, the government interpreted the Espionage Act to cover what might be an unclassified tip through two means. First, they pointed to language in the Espionage Act that criminalizes someone “caus[ing secrets] to be communicated, delivered, or transmitted,” and from that argued Sterling was responsible not just for the leak to Risen but also for the journalist’s attempt to publish a newspaper article and his completion and his publisher’s delivery to Virginia of a book chapter. Then, for most counts, they argued that Sterling did not have to have handed Risen secret information directly, he could do so indirectly.

If the jury found Sterling indirectly got secrets into Risen’s hands and, from that, caused him to write an article and a book chapter on it (irrespective of the additional work Risen did, the work of his editors at the Times and the publishers at Simon and Schuster and the commercial freight company that carried those secrets in a bound book to Virginia), that was enough to send him to prison for most of the rest of his life.

While it’s all well and good that DOJ backed off plans to force James Risen to testify, I think few realize the implications of Sterling being held responsible for an entire NYT story based on four minutes and 11 seconds of phone conversations.

They may well criminalize providing unclassified tips to get reporters to chase down classified stories.

Jury Convicts Sterling on All Nine Counts

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Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

After having deliberated for slightly over 2 days, the jury today found Jeffrey Sterling guilty of all nine counts today. (See a summary of the charges here.)

I’m not surprised the jury found Sterling guilty of some of the charges: of leaking Risen information on Merlin and the operation he was involved in, and of retaining and then leaking Risen a document involved in that. The government multiplied the charges for both the 2003 New York Times story (at which point, Sterling and Risen had only spoken for two minutes and 40 seconds) and the 2006 book (by which point they had had more lengthy discussions), such that each leak amounted to multiple charges. In addition, the jury convicted Sterling of passing government property worth over $1,000, and of obstruction of justice.

It’s the last charge that really raises questions about how the jury understood their instructions.

That’s because the government charged Sterling for obstructing the investigation by destroying a totally unclassified email he sent to James Risen in March 2003; he destroyed that email sometime between April and July 2006. The government made no allegation that Sterling ever entered Virginia during this period, much less destroyed the email there. In other words, there is no way Sterling should have been found guilty on that charge in Virginia (though it was easily the charge for which there was the most evidence to convict him of, had it been charged in Missouri). So that guilty verdict should make it easier to prove that the jury misunderstood the venue questions.

The other thing I think the defense might have grounds to appeal was Leonie Brinkema’s decision (which remains classified) that kept out details showing that several of the witnesses against Sterling — up to four of the people cleared into the Merlin operation — had, like Sterling, kept classified documents at home. One of the few concrete pieces of evidence against Sterling was that he had kept (probably retroactively) classified documents at home, which the government presented in big red printed SECRET folders. But, if (as seems highly likely) Bob S also did the same, it might raise questions about why FBI never investigated him as a potential source.

There’s much more that raises questions about the legitimacy (though not necessarily the outcome) of the trial, such as the things CIA managed to keep secret, including that the CIA had declared state secrets over some of the evidence submitted at trial to deprive Sterling of the ability to sue for discrimination.

And, finally, the verdict raises real questions about the economy of leaks in DC, in which people may point reporters to stories, only to have the reporters dig up damning evidence from other sources (which is what seems most likely to have happened here). Jeffrey Sterling just got found guilty for causing James Risen to publish a story to (the government claimed) avenge his crummy treatment by the CIA. Sterling’s guilty verdict allows no room for Risen to have decided to publish a story about CIA’s horrible record on WMD. This verdict will not only send Sterling to prison, but it turns journalists into agency-free vehicles of their sources.

 

To Avenge Mr. Merlin, CIA Exposed Mrs. Merlin

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Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

The government engaged in a great deal of security theater during the Jeffrey Sterling trial, most notably by having some CIA witnesses — including ones whose identities weren’t, technically, secret — testify behind a big office divider so the general public couldn’t see the witness.

But along the way, the government revealed a great number of secrets, including a number of secrets about how its counterproliferation programs work.

Perhaps most ironically, in a trial aiming to convict Jeffrey Sterling for revealing that the Russian scientist referred to as Merlin during the trial was a CIA asset, the government revealed that Merlin’s wife was also an asset.

That possibility was first suggested in the testimony of the first witness, Stephen B, who described originally recruiting Mrs. Merlin (presumably also for information on Russia’s nuclear program), not Merlin himself. Merlin’s wife suggested CIA recruit Merlin.

But the exhibits make it even more clear that CIA continued to have a relationship with Mrs. Merlin as well. For example, the first of two cables describing CIA informing the Merlins the engineer appeared in James Risen’s book describes them as the “Merlin assets,” plural.

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That January 6, 2006 cable goes on to reveal that Mrs. Merlin had been facilitating the targeting of a Russian official who was due to travel to the US.

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In addition, a stipulation regarding how much the CIA paid out over the years described it as how much “CIA paid Merlin and his wife.” [my emphasis] Indeed, the payments continued after CIA purportedly had to discontinue using Merlin on operations when Risen threatened to publish a New York Times story in 2003, and continued even after Merlin appeared in Risen’s book in 2006, even increasing in 2007.

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Altogether, the CIA paid the Merlins roughly $413,223.67 over the 7 years after James Risen supposedly ruined Merlin’s usefulness as an asset.

It’s possible that some of these amounts were just meant to keep the Merlins silent. Yet it’s also clear that in 2006, Mrs. Merlin was actively providing information on Russian targets to the CIA.

None of these details — including a listing of how much nuclear engineers might expect to be paid by the CIA for a thorough debriefing then participation in a deception operation — were made public by Risen’s book.

But in the government’s zeal to punish Jeffrey Sterling because it believes he revealed Merlin to the world, the government has, in turn, revealed Mrs. Merlin.

The Sterling Closing Arguments: Who Is the Hero, Who Is the Storyteller?

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Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

“Jeffrey Sterling was the hero of Risen’s story,” prosecutor Eric Olshan finished his closing argument in the Jeffrey Sterling trial. “Don’t let him be the hero of this one.”

“They are patriots,” prosecutor Jim Trump ended his remarks, speaking of the many CIA officers the jury had heard from. “They do their work without accolades.” He then compared Sterling with those patriots. “Sterling is not a patriot,” he described after accusing Sterling of betraying the CIA and his colleagues. “He is the defendant, he is guilty.”

Defense attorney Barry Pollack spoke in different terms — of the government’s insurmountable burden to present actual evidence that Jeffrey Sterling leaked national defense information to James Risen. Pollack warned of what a tragedy it would have been had the jury used the circumstantial evidence, presented by the government, that the word “Merlin” appeared on a computer Sterling used for 2 years to convict Sterling, when it turns out the word probably got there from its prior owner’s review of a piece of software called Merlin. “It would have been a tragedy” had the jury convicted Sterling based on that evidence, Pollack ended his presentation.

But along the way Pollack reminded whose story this is: James Risen’s, not Jeffrey Sterling’s, and the choices about how he presented Sterling, Bob S, and Merlin were made by him. The government, which pursued Risen’s testimony for 9 years, today presented the reporter as a mere vehicle for Jeffrey Sterling, a non-entity. Of course, no mention was made of Risen’s clear argument, in both the chapter (which the jurors will read) and the rest of the book (which jurors cannot read) that there were real reasons to be worried about CIA’s actions with respect to WMDs in both 2003 and still in 2006.

The government did a lot of good for their case in their closing arguments. Prior to today, their case was a mess, with their last witness, FBI Agent Ashley Hunt, admitting she had not even tried to gather evidence from some of the other possible sources for Risen, and had not succeeded for others. Olshan’s focus on citations from Sterling’s performance review was particularly compelling that Sterling had a role — albeit one that might have involved sharing entirely unclassified information — in Risen’s story.

Pollack did his best work pointing out that the evidence in CIA cables — particularly the timeline of meetings just before Merlin went to Vienna — suggested Merlin’s explanation for how a key letter appeared in Risen’s book did not make any sense. “There’s one problem [with Merlin’s story],” Pollack claimed. “It’s not true.” CIA cables showed that Merlin had not met alone with Sterling at the time he claimed he had, so it was impossible for Sterling to have gotten a copy of the letter in the way Merlin claimed he had. Pollack also took the government’s own narrative of Sterling’s calls with Risen, and showed where they had omitted the events in Sterling’s long-running equal opportunity and publication fights with the CIA, a perfectly innocent explanation for his calls with Risen.

There was almost no room in either story for challenging these narratives of heroism and betrayal. After all, if nuclear weapons are as serious as Olshan reminded the jury they are, then perhaps the concern about giving nuclear blueprints to Iran was itself a grave concern. Perhaps whoever leaked this story to James Risen as the country went to war in the name of WMDs that didn’t exist was him- or herself a hero. That was not submitted to the jury as a possibility.

Ultimately, though, it will come down to the story the jurors themselves craft to explain how a chapter that adopts a strong narrative voice — Risen’s voice — came to be, and whether they believe the government has presented enough evidence to prove Sterling was one of the many characters in the story of how investigative reporter James Risen publicized what the government claims was one of its closest held secrets.

Before this close, I would have guessed that there was no way the jury would find Sterling guilty; the government simply had not presented any evidence. It’s not clear their evidence is any more sound now, but they have told a story that may well resonate with the jury.