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Did DOJ Subpoena Ex-Spook’s Lawyer to Discredit Any Whistleblower Motive?

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Via Jeff Stein, the St. Louis Beacon reports that DOJ not only (unsuccessfully) subpoenaed James Risen in their pursuit of alleged MERLIN source Jeffrey Sterling, but they successfully subpoenaed Sterling’s one-time lawyer, Mark Zaid.

Mark Zaid, a Washington, D.C., lawyer who handles national security cases, was subpoenaed to appear before a grand jury to discuss events surrounding his representation of Sterling in a race discrimination case he filed against the CIA, say sources with knowledge of the case.

As both pieces lay out, the guidelines on subpoenaing a lawyer are–at least in theory–as limited as subpoenaing a reporter (never mind that the government wiretaps lawyers representing alleged terror suspects). But they appear to have used Zaid to get to other interactions–including Sterling’s testimony to a congressional committee–apparently to hone in on an alleged motive.

Prosecutors questioned Zaid about Sterling’s motive in allegedly leaking classified information about an intelligence operation in Iran to James Risen of The New York Times, a source said. The indictment alleges that Sterling leaked the information to retaliate against the CIA for its refusal to settle his race discrimination claim and to approve a memoir he was writing.

The prosecutors’ questions focused on motive and dealt with the circumstances of Sterling’s case and contacts Zaid had with third parties, a source said. Zaid had tried to negotiate a settlement of Sterling’s issues with the CIA. In addition, prosecutors questioned Zaid about actions he had taken on Sterling’s behalf that led to testimony to a congressional committee and that promoted his racial discrimination case through the media, a source said.

Zaid’s testimony was entirely about his contacts with third parties on Sterling’s behalf and was outside of the attorney-client privilege, a source said. [my emphasis]

Now, there are several interesting implications of this. For starters, Zaid probably represents more disgruntled CIA officers than Risen publishes CIA-related scoops. Subpoenaing him–even with the understanding he didn’t testify about protected conversations–may chill others who would seek out Zaid for assistance.

But I’m particularly interested in the way this seemingly links conversations with third parties–notably a Congressional Committee–and motive. Because one of the weakest parts of the indictment is the CIA’s effort to dismiss the possibility that Sterling came forward as a whistleblower.

The indictment describes testimony Sterling gave to two staffers at SSCI on March 5, 2003. This happened two weeks before the start of the Iraq War, but after CIA had rejected the employment discrimination settlements Sterling had proposed through Zaid:

On or about March 5, 2003, consistent with his secrecy and non-disclosure agreements with the CIA, defendant STERLING met with two staffers of the Senate Select Committee on Intelligence and disclosed classified information about Classified Program No. 1 and Human Asset No. 1. However, in doing so, defendant STERLING falsely characterized certain facts and circumstances relating to Classified Program No. 1, falsely reported that he had believed Classified Program No. 1 to have been flawed from its inception based solely upon his mischaracterization of a single remark by a participant in Classified Program No. 1, and claimed, based upon that false information, that Classified Program No. 1 may have enhanced the weapons capability of Country A.

Importantly, the indictment admits that Sterling was entitled to share this information “consistent with his secrecy and non-disclosure agreements.” While the indictment doesn’t ascribe a motive to Sterling in this meeting, it does say Sterling claimed MERLIN had enhanced Iran’s weapons capability. In other words, by all appearances, it seems that Sterling made a legally-allowable effort to alert Congressional oversight staffers that the CIA had engaged in a boneheaded operation that had helped one of the Axes of Evil acquire nukes.

That is, by all appearances, Sterling was acting as a whistleblower.

Note how the indictment claims Sterling misrepresented something to the Committee (which was then headed by Pat Roberts, noted for his efforts to protect Cheney’s gaming of intelligence and the CIA’s use of torture), but it doesn’t provide any evidence that Sterling intentionally misrepresented it. He was wrong, the indictment claims, but it doesn’t claim he knew he was wrong.

If Roberts didn’t squelch any interest in MERLIN himself, then we can probably assume the CIA told SSCI the same thing they’re claiming here, that Sterling was wrong about what he told SSCI.

Now look how the details change as soon as Sterling goes to Risen. Whereas with the meeting with SSCI, the indictment doesn’t attribute a motive and doesn’t explicitly claim Sterling intentionally provided false information, they claim Sterling made false representations about the operation to “induce” Risen to publish a story on it.

Defendant STERLING caused [Risen’s first call to the CIA’s Public Affairs director about MERLIN] to occur by having disclosed certain information relating to Classified Program No. 1 to Author A and providing false and misleading information about Classified Program No. 1 to Author A in order to induce Author A to publish a newspaper article about Classified Program No. 1.

Claiming Sterling’s alleged misrepresentation was part of what Sterling did to induce Risen to publish this attributes a motive to the allegedly false information. Presumably, they’re arguing that without the risk that MERLIN gave Iran nukes, Risen wouldn’t have found it as interesting a story (though given that this happened just as it was becoming clear Cheney had lied about Iraq’s nukes, I’m not so sure).

And, too, the indictment provides a clear motive behind Sterling’s attempts to get Risen to publish information on MERLIN.

Defendant STERLING’s anger and resentment towards the CIA grew over time as the CIA rejected the defendant’s settlement offers and made other legal decisions. In retaliation for the CIA’s refusal to settle on terms favorable to defendant STERLING, as well as other decisions made by the CIA, defendant STERLING caused and attempted to cause the publication of classified information about Classified Program No. 1 and Human Asset No. 1 that defendant STERLING characterized in a false and misleading manner.

So it seems likely to me the government went to the trouble of subpoenaing Zaid to try to smooth this transition between what appears to be legal whistleblowing to what they claim to be retaliatory, misrepresentative leaking. I would imagine they’re very interested in why Zaid (apparently) negotiated the testimony to SSCI.

Mind you, there are three more interesting details of timing. The indictment alleges that Sterling was the source for this November 4, 2001 article revealing that the 9/11 attacks had destroyed CIA’s New York office. As the indictment lays out, it appeared just days after the CIA had rejected Sterling’s second employment discrimination settlement attempt. So they lay the ground work for retaliation motive early.

Also, the indictment claims that Sterling called Risen on February 27, 2003, two weeks after CIA rejected his last settlement offer, putting it before Sterling told SSCI CIA had had him help deal nuclear blueprints to Iran.

But perhaps the most interesting set of dates appear in a paragraph in Sterling’s suit–filed March 4, 2003, so the day before he testified to SSCI–regarding CIA’s refusal to let him publish details in his memoir.

By letter dated January 3, 2003, the CIA notified Sterling of additional decisions regarding his October submission [to the Publication Review Board]. Sterling was not only notified that the CIA considered certain information in his manuscript to be classified, which also conflicted with earlier decisions, but the CIA informed Sterling that he should add information into the manuscript that was blatantly false. Upon information and belief, the CIA instructed Sterling to knowingly include false information within his manuscript solely to maintain a litigation advantage against Sterling in the unrelated discrimination lawsuit. [my emphasis]

That is, it appears that Sterling, not the CIA, is the first party to claim the other was lying (though they may be about entirely unrelated issues).

It seems likely one of the biggest weaknesses of this indictment is the possibility that Sterling will argue he legitimately worried about our government dragging us to war against Iran based on false claims and went to Risen as a whistleblower. That doesn’t make it legal, but it’s an extenuating circumstance that, 4,300 deaths into the Iraq War, might well make a jury pause before they convict him for leaking this information. And if Sterling can make that case at all credibly, then it’ll get into the mother of all CIPA fights over whether Sterling can get information to prove the CIA right or wrong about MERLIN.

So it seems like the government dragged Sterling’s lawyer into the Grand Jury to try to rebut the whistleblower excuse from the start.

Is the Government Confirming They Used MERLIN with Other Countries?

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Josh Gerstein notes a curious argument the government makes in its motion to deny bail to alleged leaker Jeffrey Sterling: that leaking is more dangerous than espionage.

The defendant’s unauthorized disclosures, however, may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money. Unlike the typical espionage case where a single foreign country or intelligence agency may be the beneficiary of the unauthorized disclosure of classified information, this defendant elected to disclose the classified information publicly through the mass media. Thus, every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.

Now, Gerstein looks at what this likely means for Wikileaks.

The Justice Department’s brief emphasizing the dangers of leaks could be seen as a preview of arguments the government will make against Wikileaks if authorities proceed with a prosecution of its founder, Julian Assange, or others who are part of the group. A prosecution of Wikileaks would open a significant new front in the Obama Administration’s war on leaks, which has so far targeted only leakers for prosecution and not those who receive the leaks.

But I’m interested in what they’re asserting as it has to do with Sterling’s case.

The government repeatedly claims that the big damage from Sterling’s leak is that it put the life of his source–almost certainly the former Russian nuclear scientist who passed doctored nuke plans to Iran–at risk.

In making these illegal disclosures, the defendant put the life of at least one individual in great danger. This individual, identified as Human Asset No. 1 in the Indictment, see Indictment, ¶ 14, played a role in Classified Program No. 1. The defendant’s illegal disclosures revealed certain identifying information about Human Asset No. 1 that placed Human Asset No. 1 in great danger. Id. at ¶ 42. The threat to Human Asset No. 1 was so great that certain United States government officials cited the danger to Human Asset No. 1 as one reason why Author A’s employer should not publish a newspaper article about Classified Program No. 1 in late April 2003. Id. at ¶ 42.

That expressed concern is really rich, as Risen’s book suggests that one of the concerns of the MERLIN case officer–presumably Sterling himself–is that the CIA had botched the process of doctoring the nuke plans so badly, the Russian immediately became aware of the flaw in the plans.

Within minutes of being handed the designs, [the Russian] had identified a flaw. “This isn’t right,” he told the CIA officers gathered around the hotel room. “There is something wrong.” His comments prompted stony looks, but no straight answers from the CIA men in the room. No one in the San Francisco meeting seemed surprised by the Russian’s assertion that the blueprints didn’t look quite right, but no one wanted to enlighten him further on the matter, either.

In fact, the CIA case officer who was the Russian’s personal handler had been stunned by the Russian’s statement. During a break, he took the senior CIA officer aside. “He wasn’t supposed to know that,” the CIA case officer told his superior. “He wasn’t supposed to find a flaw.”

“Don’t worry,” the senior CIA officer calmly replied. “It doesn’t matter.”

The CIA case officer couldn’t believe the senior CIA officer’s answer, but he still managed to keep his fears from the Russian, and he continued to train him for his mission.

It was a fear about the flaw in the blueprints that led the Russian to include a note hinting there was such a flaw.

There is, of course, the damage done to the Russian’s ability to conduct any similar operations. It’s worth noting, though, that at least as presented in Risen’s book, this was the first time in the many years he had been in the CIA’s defector resettlement program when the CIA asked him to conduct such an operation.

One secret CIA report said that the Russian “was a known handling problem due to his demanding and overbearing nature.” Yet the same report stated that he was also a “sensitive agent” who could be used in a “high-priority covert-action operation.”

So despite their disputes, the CIA had arranged for the Russian to become an American citizen and had kept him on the payroll, to the tune of $5,000 a month. It really did seem like easy money, with few strings attached. Life was good. He was happy to be on the CIA gravy train.

Until now. The CIA was placing him on the front lines of a plan that seemed to be completely at odds with the interests of the United States, and it had taken a lot of persuading by his CIA case officer to convince him to go through with what appeared to be a rogue operation.

But what really seems to be the government’s complaint, if you take their filing in good faith, is the notion that “every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.”

Is that, then, a confirmation of something that James Risen’s sources (plural) only suggested to him?

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CIA Doesn’t Want You To Know It Gave Iran Nuclear Blueprints

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Here’s what I think happened with Jeffrey Alexander Sterling, the former CIA officer who just got arrested for leaking classified information to James Risen.

As I noted in the timeline, Sterling was assigned to an operation in November 1998. Given that the DOJ press release specifies that Sterling was “the operations officer assigned to handle a human asset associated with that program,” and given that Risen’s MERLIN story includes first person details from the case officer managing a Russian scientist asked to leak a nuclear blueprint to the Iranians, it seems that Sterling was that case officer.

In other words, Sterling was probably the guy who convinced a Russian defector to give a nuclear blueprint to the Iranians.

As Risen tells it, the CIA prepared the Russian for the operation in a series of meetings at a luxury hotel in San Francisco. At one point, they handed the blueprints to the Russian.

Within minutes of being handed the designs, [the Russian] had identified a flaw. “This isn’t right,” he told the CIA officers gathered around the hotel room. “There is something wrong.” His comments prompted stony looks, but no straight answers from the CIA men in the room. No one in the San Francisco meeting seemed surprised by the Russian’s assertion that the blueprints didn’t look quite right, but no one wanted to enlighten him further on the matter, either.

In fact, the CIA case officer who was the Russian’s personal handler had been stunned by the Russian’s statement. During a break, he took the senior CIA officer aside. “He wasn’t supposed to know that,” the CIA case officer told his superior. “He wasn’t supposed to find a flaw.”

“Don’t worry,” the senior CIA officer calmly replied. “It doesn’t matter.”

The CIA case officer couldn’t believe the senior CIA officer’s answer, but he still managed to keep his fears from the Russian, and he continued to train him for his mission.

In February 2000, the Russian was flown to Vienna by himself to deliver the blueprints to Iran’s mission to the IAEA there. Worried that the CIA was framing him somehow, he wrote a letter to the Iranians that he included with the blueprints.

What is the purpose of my offer?

If you try to create a similar devise you will need to ask some practical questions. No problem. You will get answers but I expect to be paid for that. Let’s talk about details later when I see a real interest in it.

Now just take your time for professional study of enclosed documentation. My contact info on next page.

In other words, the Russian warned the Iranians that there was a flaw in the blueprints.

Three months later, in May 2000, Sterling appears to have been moved off the MERLIN operation and compartmented out of it. On August 2, 2000, Sterling first filed his employment discrimination suit against the CIA. In January 2002, his employment with the CIA ended. In April of that year, the CIA invoked state secrets in his employment discrimination lawsuit. And in January 2003, the CIA’s Publication Review Board told him to include false information in his memoirs. After the CIA rejected his settlement offer in February 2003, he first reached out to Risen. While he kept in contact with him, it may not have been until after Sterling’s employment discrimination suit was rejected in either 2004 (by the VA District Court) or 2005 (by the Appeals Court, though that seems too late to have been included in Risen’s book) that the story made it into Risen’s book.

In any case, this all seems to be about the CIA’s efforts to prevent you from knowing that it gave Iran nuclear blueprints in 2000.

James Risen’s MERLIN Source Arrested

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DOJ has announced the arrest of James Risen’s source for the MERLIN story (though they don’t admit Risen and MERLIN are the leaks in question).

Jeffrey Alexander Sterling, 43, of O’Fallon, Mo., was charged in a 10-count indictment returned by a federal grand jury in the Eastern District of Virginia on Dec. 22, 2010, and unsealed today.  The indictment charges Sterling with six counts of unauthorized disclosure of national defense information, and one count each of unlawful retention of national defense information, mail fraud, unauthorized conveyance of government property and obstruction of justice.  Sterling was arrested today in St. Louis and is expected to make his initial appearance this afternoon before U.S. Magistrate Judge Terry I. Adelman in U.S. District Court for the Eastern District of Missouri.

The arrest seems all the more futile given that everyone knows the story in question.

Which leaves the interesting bits of this press release, revealing Sterling’s motive for the leak.

According to the indictment, Sterling was employed by the CIA from May 1993 to January 2002.  From November 1998 through May 2000, he was assigned to a classified clandestine operational program designed to conduct intelligence activities related to the weapons capabilities of certain countries, including Country A. During that same time frame, he was also the operations officer assigned to handle a human asset associated with that program.  According to the indictment, Sterling was reassigned in May 2000, at which time he was no longer authorized to receive or possess classified documents concerning the program or the individual.

[snip]

Specifically, the indictment alleges that beginning in August 2000, Sterling pursued various administrative and civil actions against the CIA concerning alleged employment-related racial discrimination and decisions made by the CIA’s Publications Review Board regarding Sterling’s efforts to publish his memoirs. According to the indictment, on Feb. 12, 2003, the CIA rejected Sterling’s third offer to settle his discrimination lawsuit, which was ultimately dismissed by the court.

The indictment alleges that beginning a few weeks later, in February and March 2003, Sterling made various telephone calls to the author’s residence, and e-mailed the author a newspaper article about the weapons capabilities of Country A. According to the indictment, while the possible newspaper article containing the classified information Sterling allegedly provided ultimately was not published in 2003, Sterling and the author remained in touch from December 2003 through November 2005 via telephone and e-mail. The indictment alleges that in January 2006, the author published a book which contained classified information about the program and the human asset.

The indictment also alleges that Sterling obstructed justice when, between April and July 2006, he deleted the e-mail he had sent to the author concerning the weapons capabilities of Country A from his account. According to the indictment, Sterling was aware by June 2003 of an FBI investigation into his disclosure of national defense information, and was aware of a grand jury investigation into the matter by June 2006, when he was served a grand jury subpoena for documents relating to the author’s book.

Note the reference to several suits against the CIA. The first of these appears to have been at a minimum an employment discrimination suit filed in NY on August 2, 2000. On April 18, 2002, the CIA first invoked state secrets in his case. On March 7, 2003, the judge in NY granted the CIA’s venue complaint and moved the case to Alexandria, VA–basically the CIA’s very own district court. On March 3, 2004, the case was dismissed. And on September 28, 2005, the Appeals Court rejected Sterling’s appeal.

Sterling’s second suit was filed on March 4, 2003 (that is, the day after his employment discrimination suit was dismissed in VA). It charges that Sterling submitted his memoirs for pre-publication review in 2002. His second submission was held up, not least to give CIA’s Office of General Counsel a review. Sterling claims that OGC got involved to give them an advantage in the NY employment discrimination suit. In December 2002, the CIA told him some of the information was classified (after having earlier said that similar information was not). Upon rejecting his submission on January 3, 2003, the CIA not only told him some of the information was classified, but they “informed Sterling that he should add information into the manuscript that was blatantly false.”

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Does Jerry Doe Know Anything about Merlin?

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In this post, I described that Jerry Doe, a former CIA operative who claims he was fired from the CIA in retaliation for reporting intelligence the CIA didn’t like, now claims that some of that intelligence pertains to Iran. The timing of the allegations of his complaint that may pertain to Iran–2000, not (as the NIE cites) 2003–got me thinking about James Risen.

You see, we know of another operation from 2000 involving Iran that the CIA is still touchy about–the Merlin operation that Risen describes in his book, State of War.

In case you’ve forgotten, in February 2000, the CIA had a Russian nuclear scientist pass blueprints for a nuclear weapon to Iran. The blueprints were erroneous in key ways, so they wouldn’t lead to a nuclear weapon–at least, they wouldn’t have if the Russian hadn’t alerted the Iranians to the faults in the blueprints, which he did. But the CIA was willing to pursue such a crazy plan, Risen reported, because they hoped Iran would follow the blueprints and spend years pursuing a faulty warhead.

Here’s Risen’s description about why CPD tried something as crazy as Merlin.

The Counterproliferation Division within the CIA’s Directorate of Operations, the agency’s clandestine espionage arm, came up with MERLIN and other clandestine operations as creative, if unorthodox, ways to try to penetrate Tehran’s nuclear development program. In some cases, the CIA had worked jointly with Israeli intelligence on such operations, according to people familiar with the covert program.

Now, if his complaint and Warrick’s report on it is true, Jerry Doe was busy penetrating Tehran’s nuclear development program in 2000, at precisely the same time when–purportedly out of frustration with their inability to penetrate Tehran’s nuclear development program using traditional means–the CIA dumped nuclear blueprints into the Iranians’ laps. Though, as Risen notes, the CIA was careful to hide the fact that it was the source of the blueprints.

What better way for the CIA to hide its involvement in this operation than to have a veteran of Arzamas [Russia’s equivalent of Los Alamos] personally hand over the Russian nuclear designs?

Now look at the passage from Doe’s complaint that appears to pertain to Iranian nukes:

Plaintiff was first subjected to a demand that he alter his intelligence reporting in 2000, [2 lines redacted]. Read more →