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Why I Left The Intercept: The Surveillance Story They Let Go Untold for 15 Months

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The Intercept has a long, must-read story from James Risen about the government’s targeting of him for his reporting on the war on terror. It’s self-serving in many ways — there are parts of his telling of the Wen Ho Lee, the Valerie Plame, and the Jeffrey Sterling stories he leaves out, which I may return to. But it provides a critical narrative of DOJ’s pursuit of him. He describes how DOJ tracked even his financial transactions with his kids (which I wrote about here).

The government eventually disclosed that they had not subpoenaed my phone records, but had subpoenaed the records of people with whom I was in contact. The government obtained my credit reports, along with my credit card and bank records, and hotel and flight records from my travel. They also monitored my financial transactions with my children, including cash I wired to one of my sons while he was studying in Europe.

He also reveals that DOJ sent him a letter suggesting he might be a subject of the investigation into Stellar Wind.

But in August 2007, I found out that the government hadn’t forgotten about me. Penny called to tell me that a FedEx envelope had arrived from the Justice Department. It was a letter saying the DOJ was conducting a criminal investigation into “the unauthorized disclosure of classified information” in “State of War.” The letter was apparently sent to satisfy the requirements of the Justice Department’s internal guidelines that lay out how prosecutors should proceed before issuing subpoenas to journalists to testify in criminal cases.

[snip]

When my lawyers called the Justice Department about the letter I had received, prosecutors refused to assure them that I was not a “subject” of their investigation. That was bad news. If I were considered a “subject,” rather than simply a witness, it meant the government hadn’t ruled out prosecuting me for publishing classified information or other alleged offenses.

But a key part of the story lays out the NYT’s refusals to report Risen’s Merlin story and its reluctance — until Risen threatened to scoop him with his book — to publish the Stellar Wind one.

Glenn Greenwald is rightly touting the piece, suggesting that the NYT was corrupt for acceding to the government’s wishes to hold the Stellar Wind story. But in doing so he suggests The Intercept would never do the same.

That’s not correct.

One of two reasons I left The Intercept is because John Cook did not want to publish a story I had written — it was drafted in the content management system — about how the government uses Section 702 to track cyberattacks. Given that The Intercept thinks such stories are newsworthy, I’m breaking my silence now to explain why I left The Intercept.

I was recruited to work with First Look before it was publicly announced. The initial discussions pertained to a full time job, with a generous salary. But along the way — after Glenn and Jeremy Scahill had already gotten a number of other people hired and as Pierre Omidyar started hearing from friends that the effort was out of control — the outlet decided that they were going to go in a different direction. They’d have journalists — Glenn and Jeremy counted as that. And they’d have bloggers, who would get paid less.

At that point, the discussion of hiring me turned into a discussion of a temporary part time hire. I should have balked at that point. What distinguishes my reporting from other journalists — that I’m document rather than source-focused (though by no means exclusively), to say nothing of the fact that I was the only journalist who had read both the released Snowden documents and the official government releases — should have been an asset to The Intercept. But I wanted to work on the Snowden documents, and so I agreed to those terms.

There were a lot of other reasons why, at that chaotic time, working at The Intercept was a pain in the ass. But nevertheless I set out to write stories I knew the Snowden documents would support. The most important one, I believed, was to document how the government was using upstream Section 702 for cybersecurity — something it had admitted in its very first releases, but something that it tried to hide as time went on. With Ryan Gallagher’s help, I soon had the proof of that.

The initial hook I wanted to use for the story was how, in testimony to PCLOB, government officials misleadingly suggested it only used upstream to collect on things like email addresses.

Bob Litt:

We then target selectors such as telephone numbers or email addresses that will produce foreign intelligence falling within the scope of the certifications.

[snip]

It is targeted collection based on selectors such as telephone numbers or email addresses where there’s reason to believe that the selector is relevant to a foreign intelligence purpose.

[snip]

It is also however selector-based, i.e. based on particular phone numbers or emails, things like phone numbers or emails.

Raj De:

Selectors are things like phone numbers and email addresses.

[snip]

A term like selector is just an operational term to refer to something like an email or phone number, directive being the legal process by which that’s effectuated, and tasking being the sort of internal government term for how you start the collection on a particular selector.

[snip]

So all collection under 702 is based on specific selectors, things like phone numbers or email addresses.

Brad Wiegmann:

A selector would typically be an email account or a phone number that you are targeting.

[snip]

So that’s when we say selector it’s really an arcane term that people wouldn’t understand, but it’s really phone numbers, email addresses, things like that.

[snip]

So putting those cases aside, in cases where we just kind of get it wrong, we think the email account or the phone is located overseas but it turns out that that’s wrong, or it turns out that we think it’s a non-U.S. person but it is a  U.S. person, we do review every single one to see if that’s the case.

That PCLOB’s witnesses so carefully obscured the fact that 702 is used to collect cybersecurity and other IP-based or other code collection is important for several reasons. First, because collection on a chat room or an encryption key, rather than an email thread, has very different First Amendment implications than collecting on the email of a target. But particularly within the cybersecurity function, identifying foreignness is going to be far more difficult to do because cyberattacks virtually by definition obscure their location, and you risk collecting on victims (whether they are hijacked websites or emails, or actual theft victims) as well as the perpetrator.

Moreover, the distinction was particularly critical because most of the privacy community did not know — many still don’t — how NSA interpreted the word “facility,” and therefore was missing this entire privacy-impacting aspect of the program (though Jameel Jaffer did raise the collection on IP addresses in the hearing).

I had, before writing up the piece, done the same kind of iterative work (one, two, three) I always do; the last of these would have been a worthy story for The Intercept, and did get covered elsewhere. That meant I had put in close to 25 hours working on the hearing before I did other work tied to the story at The Intercept.

I wrote up the story and started talking to John Cook, who had only recently been brought in, about publishing it. He told me that the use of 702 with cyber sounded like a good application (it is!), so why would we want to expose it. I laid out why it would be questionably legal under the 2011 John Bates opinion, but in any case would have very different privacy implications than the terrorism function that the government liked to harp on.

In the end, Cook softened his stance against spiking the story. He told me to keep reporting on it. But in the same conversation, I told him I was no longer willing to work in a part time capacity for the outlet, because it meant The Intercept benefitted from the iterative work that was as much a part of my method as meetings with sources that reveal no big scoop. I told him I was no longer willing to work for The Intercept for free.

Cook’s response to that was to exclude me from the first meeting at which all Intercept reporters would be meeting. The two things together — the refusal to pay me for work and expertise that would be critical to Intercept stories, as well as the reluctance to report what was an important surveillance story, not to mention Cook’s apparent opinion I was not a worthy journalist — are why I left.

And so, in addition to losing the person who could report on both the substance and the policy of the spying that was so central to the Snowden archives, the story didn’t get told until 15 months later, by two journalists with whom I had previously discussed 702’s cybersecurity function specifically with regards to the Snowden archive. In the interim period, the government got approval for the Tor exception (which I remain the only reporter to have covered), an application that might have been scrutinized more closely had the privacy community been discussing the privacy implications of collecting location-obscured data in the interim.

As recently as November, The Intercept asked me questions about how 702 is actually implemented because I am, after all, the expert.

So by all means, read The Intercept’s story about how the NYT refused to report on certain stories. But know that The Intercept has not always been above such things itself. In 2014 it was reluctant to publish a story the NYT thought was newsworthy by the time they got around to publishing it 15 months later.

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.

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Narratology of the Russian Scientist We’re Allowed to Memorialize but Not Quote

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I was meaning to write a post on this filing in the Jeffrey Sterling case, largely to point out the government is trying to prevent Sterling from arguing that everyone–particularly John Brennan–leaks.

The Court should bar the defendant from presenting any evidence, argument or comments of selective prosecution or that everybody leaks classified information.

[snip]

Not only is such evidence not probative on the issue of whether the defendant committed the charged crimes, but the introduction of such evidence or arguments would force mini-trials over the similarities and differences between the present prosecution and every other specific instance of leaked classified information. Fights over the classification levels of the information, the potential damage caused to the United States, and a host of other issues would consume and overwhelm the real issues in this case.

The motion is particularly amusing not just because it was submitted at the very same time senior officials–including Brennan, who was involved in the underlying issues in this case–were leaking state secrets for days. And because, a week after this, the Defense did file a still-sealed selective prosecution motion. Moreover, the government’s case citations don’t address the instant issue: that the prosecuting agency itself–DOJ–leaks with impunity. It’s one thing to say other non-governmental criminals commit the same crime without being prosecuted; it’s another to say the agency prosecuting Sterling doesn’t prosecute people within its own agency that commit the same alleged crime.

Alas, I am going to have to, instead, focus instead on the motion to prevent Sterling from presenting any evidence that the Russian Scientist tasked with handing off faulty blueprints to the Iranians might be James Risen’s source.

 The court should bar the defendant from presenting any evidence or any argument regarding alternative perpetrators absent some non-speculative evidence of a connection to Risen and some knowledge of or access to Classified Program No. 1. Specifically, absent such nonspeculative evidence, the caselaw forecloses the defendant from presenting any evidence or making any argument regarding the following:

[snip]

Arguments or comments that Human Asset No. 1 was Risen’s source and disclosed the national defense information contained within Chapter 9;

Of course, all this is happening while the government is simultaneously trying to get comments the Russian Scientist made to his case officer when Risen’s book came out admitted into evidence, while at the same time trying to prevent Sterling from subpoenaing the underlying documents that might show the Russian had to be Risen’s source.

The government, you see, wants to admit evidence that the Russian was scared Risen’s revelations put his safety at risk.

On or about January 23, 2006, after having read Chapter 9 and the information contained therein for the first time, Human Asset No. 1 contacted his CIA case officer and requested an unscheduled meeting. Human Asset No. 1 subsequently met with his CIA case officer and reported his fears and personal safety concerns for himself and his family. The case officer contemporaneously memorialized Human Asset No. 1’s fears in a cable. See Dkt. 153, CIPA Exhibit 47. That cable demonstrates that Human Asset No. 1 made his statements to his CIA case officer while still “under the stress of excitement” caused by the level of detail identifying him as the asset involved in Classified Program No. 1. In addition, the CIA case officer will testify at trial that he had never seen Human Asset No. 1 so shaken and scared than on that day as Human Asset No. 1 reported his fears and concerns to him.

The government moved to enter this cable after the defense had already apparently (the filing is heavily redacted) pointed out that Risen’s book had not identified the Russian scientist–the defense appears to want to call Pat Lang to support this point–but also to note that the Russian would have had as much reason to want to discredit the CIA as Sterling allegedly would after he had been put in the position of dealing bad documents to Iran.

More interesting, Sterling suggests that the Russian may be the only person who had a document mentioned in Risen’s book. One possibility is a written report the Russian made of his trip. Another is the content of the cover letter he wrote warning the Iranians that there was something wrong with the blueprints.

But most notably–given the claims and counter-claims about what Risen’s narrative style might indicate about his sources–the Defense notes that much of the narrative of MERLIN is focalized through the Russian.

Human Asset No. 1 obviously had knoweldge of almost all of the information that appears in Chapter Nine. Indeed, there are portions of that Chapter that detail actions about which only Human Asset No. 1 had first-hand knowledge and those portions of the Chapter are written from the perspective of Human Asset No. 1. See, e.g. State of War at 194-95 (“I’m not a spy, he thought to himself. I’m a scientist. What am I doing here?”); Read more →

The Narratology of Leaks, Part Two: Schooling William Welch

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Let me just say I do not relish seeing William Welch making precisely the point I have made in one of his filings. When you read this,

That Mr. Feldstein’s opinions are unreliable and based on no method at all is underscored by their internal inconsistency. He opines that “all statements in Chapter Nine that seem to indicate the potential identity of sources must not be taken at face value,” Attachment A at 3. Yet at the same time, he also concludes that “taken at face value, Mr. Risen had multiple sources” for Chapter Nine, including multiple human sources and documentary sources. Id. Moreover, because such testimony has a substantial likelihood of confusing the jury, it is also inadmissible under Rule 403.

You’d almost think Welch had read this,

The filing goes on to suggest that because Risen used this same technique he succeeded in hiding his sources.

Chapter 9 of State of War attributes thoughts and motivations hoth the “the Russian scientist” and to “the CIA case offcer.” It is not possible to infer from this attribution whether Mr. Risen spoke directly to both of these individuals, one of them or neither of them, in gathering the information contained in Chapter 9, much less what information, if any, either individual provided Mr. Risen.

Now, in the literary world, scholars are cautious about making definitive statements about the intentionality of the author (particularly as with books like this, which have clearly been edited to make the book a good read). But I’ll grant that a good investigative journalist might be (though might not be) a lot more cautious about the legal implications of the narrative voice used than a fiction writer.

But there’s another problem. The filing later suggests a reader can draw conclusions from the narrative presentation of evidence.

Taken at face value, Mr. llsen had multiple sources for the portion of Chapter 9 of State of War that discusses a CIA operation to provide flawed information to Iran’s nuclear program. These sources include multiple human sources as well as documentary sources, which may have been  provided to Mr. Risen by persons who also gave oral information to Mr. Risen or by others in addition to those who gave him oral information. Mr. Feldstein bases this opinion, in part, on the following examples: 1) page 197 of the book attributes information to a “secret CIA report”; 2) the material quoted at pages 204-05 of the book appears to have been quoted from a documentary source; 3) page 208 attributes views to unnamed “offcials”: 4) page 211 cites “several former CIA offcials”; and 5) page 211 indicates that the Senate Selcct Committee on Intellgence received information about the program from the “CIA case offcer,” but states the Committee took no action.

Sterling’s team is trying to have it both ways, drawing on Feldstein’s amateurish identification of narrative voice to suggest one cannot draw conclusions about sources, then showing Feldstein doing just that based on the clear indications given in the narrative.

Say, Bill Welch? In case you’re reading this post, you made almost as stupid an error in your request to preclude the defense’s use of narratology at the Jeffrey Sterling trial as the defense did in trying to have it both ways. You try to argue that the typical juror would understand this stuff already. Trust me, I’ve taught this subject to literature majors and honors students at a good state university, and it is not commonly understood, even among uncommonly smart people.

But even funnier is the way you make this argument.

In addition to inadmissible speculation regarding sources, the defendant also intends to call this expert to testify regarding the fact that State of War is written in the “third-person omniscient narrative style.” Attachment A at 1-2. The concept of a narrative voice, including the “third-person omniscient” narrative voice, does not require expert explanation. It is a common feature of high school reading curricula. See, e.g., English Standards of Learning in Virginia Public Schools 2 (2010), available at http://www.doe.virginia.gov/testing/sol/standards_docs/english/ 2010/stds_english9.pdf; English Standards of Learning Curriculum Framework 2010: Grade Nine 12 (2010), available at http://www.doe.virginia.gov/testing/sol/standards_docs/english /review.shtml. Because the concept of “point-of-view” is within the common knowledge and education of the average juror, it is inadmissible and properly excluded.

First, here are the correct links, in case Judge Brinkema wants to see the original references and gets lost by the 404 errors the URLs in the filing pull up.

But what the curriculum document you’ve linked to–and you yourself–are referring to is “point of view,” not “third person omniscient” narrative.

The student will read, comprehend, and analyze a variety of literary texts including narratives, narrative nonfiction, poetry, and drama.

e) Explain the relationships between and among elements of literature: characters, plot, setting, tone, point of view, and theme.

i) Explain the influence of historical context on the form, style, and point of view of a written work.

Neither the word, “omniscient,” nor the phrase “third person” appears in that curriculum document.

As even Wikipedia will tell you, “point of view” and “narrative voice” are different things. Both a first person and a third person narrative can use the same point(s) of view. The points of view (actually, focalization) James Risen used in the chapter in question is generally that of the Russian scientist and the case officer. We don’t, for example, get access to the feelings of the “senior CIA officer,” who might have been thinking that the “case officer” was being a big wuss about the doctored nuclear blueprints and should just suck it up and go on with the operation; we only get that person’s statements. And in spite of the fact that Risen uses some fairly interesting narrative techniques to convey the thoughts of the Russian (as I noted in my last post), this is not told in a first person narrative in the voices of the two: we (generally) get not only the narrator’s description of who said and thought what, but also a great deal of background about things like the IAEA, Russian nukes, and Nunn-Lugar that Risen is pretty damn knowledgeable about all by himself.

In other words, in the passage of the filing claiming that this stuff is known to VA’s high school freshmen, Welch makes an error, incorrectly conflating two aspects of narrative (and frankly, the two that would need to be distinguished for anyone, government or defense, to make an argument at trial about what the style of Risen’s text means about his sources).

Apparently, your average VA juror can be expected to know this stuff, but not a fancy government lawyer with degrees from Princeton and Northwestern.

Now, as I’ve said, I think this use of narratology in the court room is inappropriate, regardless of whether the defense or the prosecution attempts to use it (and both are trying to do so). I hope the defense responds to this filing by counter-filing that if their expert is precluded, the government should also be prevented from presenting their claims about what Risen’s narrative techniques mean, since the lawyers involved are obviously incompetent to do so.

But I will say I’m having a bit of fun watching the debate about it.

The Narratology of Leaking: Risen and Sterling

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You know, I very much want Jeffrey Sterling to defeat the government’s attempt to criminalize whistleblowing. I very much want James Risen to succeed in avoiding expansive testimony in the Sterling case.

But this is bullshit.

Sterling’s lawyers plan to call Professor Mark Feldstein to make silly claims about a tie between the narrative voice an author uses and the sources he may or may not have relied on.

Mr. Feldstein wil testify that he has read Chapter 9 of State of War, authored by James Risen, and that based on his training, education, and experience as a working journalist and an academic studying journalism, will opine that it is written in the third person omniscient, a narrative style in which the reader ís presented the story by a narrator with an overarching perspective, seeing and knowing everything that happens within the world of the story, regardless of the presence of certain characters, including imputing to the characters’ internal voices what they are thinking and feeling. This style has become increasingly popular with mainstream journalists in recent years, as exemplified by books authored by Bob Woodward. One effect of the third-person omniscient narrative style is that it tends to mask the identity of a story’s sources, protecting both the anonymity of sources and disguising the number of sources. It is not uncommon using this style for an author to ascribe thoughts or motivations to particular “characters,” whether or not the author has actually spoken directly to the individual to whom thoughts and motivations are being ascribed. Indeed, it is not an uncommon practice to ascribe thoughts and motives to an individual to whom the author has not spoken intentionally to obscure who the actual source(s) for a story were.

I have a number of problems with this.

First, the narrative voice is, in places, more nuanced than a simple “third person omniscient” voice–as when Risen interjects the direct speech (in this case, thought) of the Russian scientist without quotations:

The Permanent Mission of the Islamic Republic of Iran to the International Atomic Energy Agency (IAEA) wasn’t the easiest office in Vienna to find.

They could have at least given me good directions.

As he stumbled along into Vienna’s north end, in the unglamorous neighborhood surrounding the Parterstern U-Bahn station, the same question pounded in his brain again and again, but he couldn’t find an answer.

What was the CIA thinking?

That doesn’t negate the larger point–that Risen intersperses “characters'” thoughts with omniscient narrative. But it sort of makes the point seem amateur from a narratological standpoint.

Then there’s the invocation of Woodward, that magic journalist’s name, to obscure the point. Woodward made this style of reporting popular, the filing suggests, so it must be acceptable journalism.

But that suggests two things that are not in evidence. Woodward never really hides his sources. Why bother, when there is an unwritten “Woodward rule” that says he, and perhaps only he, will never be prosecuted for reporting top secret information? Thus we–at least I–am safe assuming Woodward spoke with precisely whom it appears he spoke with, not just because we know he is systematically accorded that kind of access, but because we know sanction for participation in his semi-official histories comes straight from the top.

Woodward uses this style to make it clear (or at least suggest) that these top officials are his sources, not to obscure the kind of top-level access everyone knows he has. It’s his brand.

The filing goes on to suggest that because Risen used this same technique he succeeded in hiding his sources.

Chapter 9 of State of War attributes thoughts and motivations hoth the “the Russian scientist” and to “the CIA case offcer.” It is not possible to infer from this attribution whether Mr. Risen spoke directly to both of these individuals, one of them or neither of them, in gathering the information contained in Chapter 9, much less what information, if any, either individual provided Mr. Risen.

Now, in the literary world, scholars are cautious about making definitive statements about the intentionality of the author (particularly as with books like this, which have clearly been edited to make the book a good read). But I’ll grant that a good investigative journalist might be (though might not be) a lot more cautious about the legal implications of the narrative voice used than a fiction writer.

But there’s another problem. The filing later suggests a reader can draw conclusions from the narrative presentation of evidence.

Taken at face value, Mr. llsen had multiple sources for the portion of Chapter 9 of State of War that discusses a CIA operation to provide flawed information to Iran’s nuclear program. These sources include multiple human sources as well as documentary sources, which may have been  provided to Mr. Risen by persons who also gave oral information to Mr. Risen or by others in addition to those who gave him oral information. Mr. Feldstein bases this opinion, in part, on the following examples: 1) page 197 of the book attributes information to a “secret CIA report”; 2) the material quoted at pages 204-05 of the book appears to have been quoted from a documentary source; 3) page 208 attributes views to unnamed “offcials”: 4) page 211 cites “several former CIA offcials”; and 5) page 211 indicates that the Senate Selcct Committee on Intellgence received information about the program from the “CIA case offcer,” but states the Committee took no action.

Sterling’s team is trying to have it both ways, drawing on Feldstein’s amateurish identification of narrative voice to suggest one cannot draw conclusions about sources, then showing Feldstein doing just that based on the clear indications given in the narrative.

And there’s one more problem with the filing (that may not be problematic for Sterling’s lawyers, per se, but should be for Feldstein).

The filing suggests that the profession of journalism tolerates when reporters use omniscience to hide their sources.

But the profession does not approve when journalists use omniscience to invent details they have no way of knowing. Witness the criticism of John Heilemann and Mark Halperin for doing just that in Game Change. One of the most prominent critiques–from the NYT–specifically took Heilemann and Halperin to task for not doing what Woodward does–showing some of his work.

They proceed in these pages to serve up a spicy smorgasbord of observations, revelations and allegations — some that are based on impressive legwork and access, some that simply crystallize rumors and whispers from the campaign trail, and some that it’s hard to verify independently as more than spin or speculation on the part of unnamed sources. The authors mix savvy political analysis in these pages with detailed reconstructions of scenes and conversations they did not witness firsthand (like an exchange that Hillary Rodham Clinton and Bill Clinton had on a beach in Anguilla). They employ the same sort of technique Bob Woodward has pioneered in his best-selling books: relying heavily on “deep background” interviews, along with e-mail messages, memorandums and other forms of documentation to create a novelistic narrative that often reflects the views of the authors’ most cooperative or voluble sources. Unlike Mr. Woodward’s last two books this volume has no source notes at the end.

To succeed, this defense effort has to basically argue that either Risen or his sources may have simply invented what the Russian scientist and the case officer said. It has to argue that Risen is the same kind of hackish reporter that Heilemann and Halperin are, evidence to contrary notwithstanding.

Now, suggesting Risen engaged in bad journalism is totally within the right of Sterling’s lawyers as they mount a defense. And if it keeps him off the stand, I’m sure Risen won’t be that bothered by the suggestion he either made shit up or allowed his sources to.

But the entire effort seems legally pointless, given that they’re trying to use Feldstein both to point to other possible sources for Risen while at the same time claiming that Risen’s narrative voice makes it impossible to do just that.

Sterling’s Graymail Attempt

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As Josh Gerstein reported, back in June, Jeffrey Sterling asked the government for details about which parts of James Risen’s account of Merlin are true and which are false. His lawyers argue that Sterling cannot be guilty of disseminating national defense information if what he disseminated–as the government claims–was actually not true.

Now, at first glimpse, this seems to be a graymail attempt: an attempt to demand information from the government it will ultimately refuse to turn over.

In addition to details of the alleged operation, the defense is entitled to know if, as a result of the publication of State of War, the identity of Human Asset No. 1 was learned by any foreign power at all. It is entitled to know if because of the publication of State of War, the Iranians shelved plans to use the blue prints that they allegedly learned, due to the publication of State of War, were allegedly flawed. The defense is entitled to know if this “Rogue Operation,” as described by Mr. Risen, did help the Iranian nuclear program in any way.

Some of this information, after all, would be the information Risen’s sources would have been trying to get out in the first place; this is precisely the kind of information the government is trying to suppress by prosecuting this case. And the emphasis on whether Iran (or another country) learned this information from Risen’s book–or from the operation itself–would make for an interesting question (though I suspect the government would retreat to a claim they’ve made before: that part of the damage comes in letting other countries know about this op).

But I’m also interested in Sterling’s focus on expert witnesses: as of June 22, when this was filed, the government had not yet revealed to the defense what expert they would call to verify that this information was actually national defense information. I suspect part of what the defense is trying to do is force that issue–and in particular, learn whether that expert will be someone who was actually involved in the operation (and therefore could refute Sterling’s version of what happened) or someone else, who would rely on second-hand information.

At a minimum, it must allow the defense to challenge the accuracy of that testimony by confronting the witness called by the government with the truth of what actually occurred.

I hope to come back to this issue in the coming days.

just as interesting as this attempt to get more information on what the government claims happened with the Merlin program is the timing. At one level, it seems very late in the process, almost a second swipe at a Bill of Particulars (the government responded to the first one by giving Sterling the chapter of Risen’s book).

But remember that this filing also came before most of the filings on whether or not Risen will have to testify. I noted that in addition to everything else the government has said to support its subpoena of Risen, they also said he cannot protect a source who passed false information. Of course, they haven’t proven that, they’ve simply gotten a grand jury to buy off on that.

It seems the stakes on whether information Sterling allegedly provided Risen was true or not have gone up. But that seems to be precisely the kind of information the government will want to keep out of court.

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.

Government Subpoenas James Risen for the Third Time

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The government appears to hope three time’s a charm. The last two times they subpoenaed James Risen in the case of Jeffrey Sterling, Judge Leonie Brinkema quashed the subpoena. But they’re trying again, this time to get him to testify at Sterling’s trial.

It appears likely they planned to do this 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. They also point to mentions in the indictment of an on-the-record article Risen did with Sterling, suggesting that at the very least they ought to be able to ask Risen about this at trial since he would not be protecting an anonymous source.

In other words, they crafted the indictment to be able to argue to Brinkema that on some matters, Risen’s testimony is crucial, and on others, it qualifies for no privilege.

Of course, they also have to argue that this subpoena is not harassment. If I were Risen’s lawyer, I’d argue crafting the indictment in such a way as to carve out areas to get Risen into court is itself harassment.

But that’s not all. The government tries to argue for the necessity of Risen’s testimony in one other way, one that is of particular interest. They say that Risen told his publisher that he relied on more than one CIA source for his work on MERLIN.

In addition, Risen’s own representations to his publisher demonstrate the importance of his testimony regarding the defendant’s identity. In his book proposal, Mr. Risen represented that, in writing his book, he spoke with more than one CIA officer involved in Classified Program No. 1. Consistent with these representations, moreover, the chapter of Mr. Risen’s book that includes information about Classified Program No. 1 appears to reflect the private conversations and inner thoughts of more than one individual.11 See, e.g., Exhibit A at p. 203. Risen’s testimony is therefore relevant to identifying Sterling as a source and to identifying the specific items of national defense information in his book for which Sterling was his source. Put simply, Risen’s testimony will directly establish that Sterling disclosed to him the national defense information about which he sought to write in a 2003 newspaper article, and which he ultimately included in his 2006 book. The jury should be permitted to hear that evidence in assessing whether the Government has met its burden of proving the defendant’s guilt beyond a reasonable doubt.

While this might support the necessity of Risen’s testimony on one hand (to identify what he got from Sterling and what he got from other sources), wouldn’t it also admit a selective prosecution defense? That is, if the government itself is arguing that Risen spoke to more than one CIA officer about MERLIN, then why are they only charging Sterling?

The answer may be because of the dispute about the accuracy of Sterling’s testimony. Remember, the government claims that Sterling lied to Risen about some aspect of MERLIN, presumably about whether or not the blueprints we gave to Iran had an obvious flaw that the Russian defector immediately identified. And they’re trying to use that claim–that Sterling lied–to argue that Risen doesn’t have an obligation anymore to protect his source.

Finally, whatever interest Risen has in keeping confidential his source for the national defense information at issue here, it is severely diminished by the fact that the defendant characterized some of that information in a false and misleading manner as a means of inducing Risen to write about it. See Ind. ¶ 18, 19(d). In short, the Indictment charges that the defendant perpetrated a fraud upon Risen. If “[s]preading false information in and of itself carries no First Amendment credentials” in the civil context, see Lando, 441 U.S. at 171, then it should carry no greater weight in a criminal prosecution.

They say that even while conceding that some of the information Sterling allegedly leaked to Risen is true.

The Indictment alleges that some of the information that appears in Risen’s book is national defense information – and thus is implicitly true – but also notes that some of the information contained therein is characterized in a false and misleading manner. See Ind. ¶¶ 18,19(d). The Government is not here either confirming or denying the accuracy of any particular fact reported in the book.

There’s a lot we can conclude from this filing–not least that the government seems to be abandoning the intent of the Attorney General guidelines on subpoenaing journalists (the guidelines are not mentioned once in the filing). But most of all, it seems we can conclude that the government doesn’t care so much that Sterling allegedly leaked this information–because they’re not charging the other CIA officers they appear to know leaked to Risen–but that Sterling was critical of the operation while he leaked the information.