01/29/15 – Marcy Wheeler – The Scott Horton Show

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All right, y'all, welcome back to the show.
I'm Scott Horton.
It's my show, The Scott Horton Show.
I got Marcy Wheeler on the line.
She's Empty Wheel in the blogosphere, EmptyWheel.net, and at EmptyWheel on Twitter.
Welcome back to the show.
Marcy, how are you?
Good.
Yourself?
I'm doing great.
Appreciate you joining us today.
We're here at Salon.com, and you've written quite a few for different places over the past couple of weeks here on the Jeffrey Sterling trial.
This one is called, This is How a Police State Protects Secrets.
So I guess, first of all, sum it up for us.
Who's Jeffrey Sterling, and what's all the hubbub?
Well, I'm going to say, first of all, I never pick my own salon headlines, so I wouldn't have been as alarmist.
But Jeffrey Sterling is a former CIA officer who just got convicted on nine charges, mostly espionage, for purportedly leaking details of an operation, of a kind of dicey operation, to deal nuclear blueprints to Iran in 2000.
All right, and now, well, it wasn't exactly nuclear blueprints, but the fire set for some nuclear blueprints anyway, I guess, but kind of an important point.
All right, so now, you make the case in here, and I was keeping up, we were reposting everything that Norman Solomon was writing, and Ray McGovern, and Gareth, who also covered the trial at antiwar.com about it, and you seem to agree with what I had gleaned from all that reporting, which was that the government never really came anywhere near proving beyond a reasonable doubt that Jeffrey Sterling even was responsible for this leak to James Risen.
Look, I'm not going to, I mean, I'm not going to double think the jury on most of these counts.
I think I can understand them finding him guilty for the later, for basically being involved in Risen's book.
I don't think I would have, but then I come in with a lot of information that the jury doesn't have.
I know, for example, that some of the key witnesses against Sterling have themselves done what DOJ pointed to to prove that he brings classified documents home, so have many of the witnesses against Sterling.
Jury didn't learn that, and so there's a lot of stuff like that that I know, and it makes me more predisposed to think that the government is screwy, but whatever, I'm not a juror.
There is one count where I just don't understand, and that's that they found him guilty of obstructing justice for deleting an email in 2006 that he had sent Risen in 2003, basically saying, I'm worried about Iran getting nuked, and that's what the CNN article that he linked in that email was about, and the only action that happened, happened in Missouri, so that's actually the charge that I might be most quick to find Sterling guilty of, except that it shouldn't be charged in Virginia.
It happened in Missouri.
None of it happened in Virginia.
The jurors asked for instructions on that count in particular, and they nevertheless still found him guilty on that count, and that's the one I was really shocked by, but it does suggest to me that there may have been some confusion on the instructions that the jury got at least as that count.
Mm-hmm.
All right, so it's a circumstantial case, and I guess reasonable doubt is a matter of quality and not a math problem, so it's sort of up to what the jury thinks, and they went for it, but now there have been, not just in your article here, and you got some, but all over the place, there have been all kinds of speculations about further chilling effects and implications for journalists, for journalist sources of all different descriptions.
What do you think?
Well, I think that Eric Holder did his little victory lap saying, look, woo-hoo, we can go ahead and convict people without hearing from reporters, and really what he's celebrating is that a jury, that security theater works with juries.
I mean, they basically, the whole thing, the CIA witnesses, some of whom aren't technically classified identities, testified behind this big wall so we couldn't see them, the most ridiculous part of security theater is when the government handed the jury these three documents in bright red secret folders, didn't let them read them exactly, but it turns out, A, they were probably retroactively classified secrets, they probably weren't secret when the government seized them from Jeffrey Sterling's house in October of 2006, but more importantly, they were about how to dial a rotary phone, so the CIA wants us to believe that how they dial into the CIA using rotary phones in 1987 is something that is so secret it has to be kept in special folders and only glimpsed closely, barely, and so it's that kind of security theater that I think really worked in the government's favor, but it was just ridiculous, it was just absurdity.
That's funny.
Yeah, it seems like that would be absurd to the jurors, that wait a minute, this is how desperate they are to nail this guy, is they're saying he has some old rotary phone instructions laying around his house that clearly doesn't amount to anything, I mean, it sounds as ridiculous to me as it obviously does to you, but works with the jury every time, I guess.
Well, and the other thing is that you and I know how Thomas Drake, how the government tried to prosecute Thomas Drake, again, with retroactively classifying documents and then saying, oh, you've got this document we now say is secret in your basement that the IG told you to keep in your basement, and therefore that proves you're a big leaker.
Did the defense have no ability to prove that part of it, that, hey, you guys, it wasn't even secret back when you found it?
No, actually, these three documents were entered under the silent witness rule, so the defense wasn't supposed to be able to ask questions uncrossed altogether.
Now, they did, the prosecution objected, so the jury wasn't allowed to consider what the defense objected, but that's how I know it's about rotary phones.
And I think that they did this silent witness BS, if you could use my French, to avoid happening what happened in the Drake case, which is that, you know, in the Drake case, they brought in Bill Leonard, who was the expert for all classification in the government until basically David Addington chased him out, I think it was 2007, to come in and say this is not classified.
And I think that you could easily get Bill Leonard to do the same in this case, and then the only proof you have that Jeffrey Sterling brought classified documents home was out the window.
Instead, they brought, I don't know if he's ever FOIAed CIA, but the woman who always writes these declarations about how secret stuff is for CIA FOIAs, they brought her on a stand, and she said, oh, it's very secret, and it was clear she was making stuff up, as she always does in FOIA declarations, but she did on the stand under sworn testimony.
You know, this is CIA's own judicial district, and they get away with stuff, and that's why it was charged in Virginia rather than Missouri, where it would make more sense, and they got away with it.
And you're saying that they kept it from the jury that the witnesses who were testifying against Sterling also had classified information at their house, which might give them the idea that, oh, come on, CIA guys always have a couple of classified things laying around here.
They're a big deal.
It's not a crime unless they're already trying to crucify you for something else.
Right.
And the other thing is that the CIA purportedly kept this from DOJ up until literally hours before Sterling's trial was supposed to start in 2011, and Leonie Brinkman, the judge in the case, wrote an opinion about what the defense would be able to get out of this back in December, but it's still classified.
All I know is that when the first of what are probably these witnesses testified, she interrupted and said, this is the first witness, and they went into a bench conference, and I suspect that's when she said, screw it, you're not allowed to tell the jury that this guy brought stuff home as well.
And the key part is, the key witness was this guy, Bob S., who was in charge of, he's now a contractor, but he was in charge of the counterproliferation department then.
And some of his testimony was outright, outright conflicted with the cables that were in front of his face.
So I don't think he was a particularly good witness, but I've had a lot more time with these documents than the jury got, and I'm kind of good with details and documents and not, you know, even in a group of 12 jurors, I'm not sure you'd find somebody who reads documents like I do.
And so he's not credible, and he is almost certainly one of these other people who brings stuff home.
Yeah, that's the thing.
You're kind of one-of-a-kind in an entire global blogosphere, Marcy.
So it does make it difficult, statistically, when you're dealing with just 12, to glean those kind of details, no doubt about it.
All right, when we get back, we got more with Marcy Wheeler on the conviction of Jeffrey Sterling for the leak to James Risen on the Merlin plot, the ridiculous Merlin plot.
Back in just a moment, EmptyWheel.net for her great blog.
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All right, you guys, welcome back.
It's my show, the Scott Horton Show.
I'm talking with Empty Wheel.
That's what they call her on Twitter and at her blog, EmptyWheel.net.
Here she is at Salon.com.
Oh, Marcy Wheeler is her actual human being name.
Here she is at Salon.com, Jeffrey Sterling, the CIA, and up to 80 years in prison on circumstantial evidence.
This is one of the major points of the piece here, is that the case, it seems like, Marcy, you're saying that they really made, was that, yeah, Risen had talked to this guy, and this guy had talked to Risen.
Nobody really knows what they talked about, but you could make a pretty strong, I think you're making a pretty strong circumstantial case that seems like Sterling might have given Risen a tip, maybe not have actually given him any classified information at all.
Maybe just told him, hey, there's a thing called Merlin and some Iran nuke something and you need to find out about it.
Maybe not even that much, right?
You're saying that when the jury sustains this kind of a prosecution, then that sets a whole new precedent in the common law, basically, or whatever kind of law, that that's how the law is defined now, is by what the prosecutors got away with in the past.
They could now criminalize government sources for something that has never been criminal before.
Am I reading you right?
Right.
Because it's very common that if you want an investigative reporter, somebody who is as thorough and smart and well-sourced as James Risen, to report on a classified topic without getting yourself in trouble, what you do is say, hey, Risen, here's my unclassified performance review.
Go figure out what the difficult asset that I was working with.
And you're James Risen.
You've written an entire book about Russian intelligence.
You've got really good sources in the CIA in that particular area.
I believe that Risen could put that together.
You say, I'm going to go talk to the Senate Intelligence Committee.
The first thing I would do, if I were James Risen, is call the Senate Intelligence Committee.
And in fact, one of the witnesses said he was called.
The FBI made it very clear that the Republicans on the Senate Intelligence Committee refused to cooperate till the end with the FBI investigation, so they never actually went through and figured out whether anybody on the Senate Intelligence Committee had served as a Risen source.
That's what Risen's story first looked like when he went to the CIA.
And then over the course of 20 more days, he got things like a document and he got some other materials.
Again, Risen's got a ton of sources in the CIA, but what's the most remarkable thing about this?
And that's just a theory, okay?
But what's remarkable to me is Risen and Sterling had four minutes and 11 seconds of conversation in the period where the government says Sterling told them all about Merlin.
Four minutes and 11 seconds before, it probably would have been a thousand-word article in the New York Times.
It's just not credible that Sterling gave him that information.
It's far more credible that Sterling tipped him off and said, go look this up, and that Risen managed to do that.
And yet, based on that and based on the instructions to the jury said that Sterling could be found guilty if he either directly or indirectly provided Risen information.
So I'm wondering whether the jury believes telling Risen that he was testifying before the Senate Intelligence Committee and then somebody on the Senate Intelligence Committee leaking classified information counts as indirect passage of information.
And also, even crazier, they took the language in the Espionage Act that says if you cause information to be leaked, basically, then you're guilty.
And they argued that not only was, they argued successfully, right?
That not only was Sterling responsible for leaking Risen, this information about Merlin, about this document involved in Merlin, about the Russian Merlin, but also that he was responsible for the New York Times deciding that they were going to try and write a story about it.
James Risen didn't have any responsibility, Jill Abramson, no responsibility.
It was Sterling who caused that to happen.
And then even crazier, Sterling caused all these secrets to be delivered back to Virginia in the form of a bound book in 2006.
He caused that to happen and therefore he's guilty on those charges.
And that's the kind of expansion of the interpretation of the Espionage Act that I think people in D.C. need to be very wary of because it means, and I don't know whether this is what happened in this case, that's my guess, it means that you can tip somebody off using completely unclassified information and then no matter what the investigative reporter then does with your tip, because you caused that to happen, you're responsible.
You can go to prison.
I mean, I don't think that Sterling, I don't think he will be sent to prison for 80 years, which is what he could be.
It's probably 40, 35, something in the area of Chelsea Manning.
But remember, Chelsea Manning leaked hundreds of thousands of cables, Sterling leaked one story.
Yeah, you're still talking about a life sentence for a man in his 50s or 60s here, right?
He's 47.
Oh, okay.
Well, still.
You know, basically the rest of his life, or much of the rest of his life.
But one story that he, you know, that on the first part of the story, the New York Times article, I just don't see where he did it.
I mean, I don't see, you know, on the later, there were lots of conversations with Gleison.
I might be more inclined to believe that, but four minutes, 11 seconds, going to prison for, you know, up to 80 years.
Yeah, that's really something else.
And under a statute where it's just laughable on its face, you take any family at any kitchen table in America and say, a guy at the CIA tells a story of scandalous misbehavior at the CIA to the New York Times.
Is that espionage?
And they'll say, no, espionage is working in the service of a foreign power to undermine your own country, not telling the truth to the most official press in the entire nation about misdoings by our public servants.
And what are they talking about?
Right, right.
I don't know how they get away with this at all.
So this is conviction number six or seven under this thing in just in the Obama years?
Well, Thomas Drake got off.
So, yes, it's something close to that.
There was one other guy who got off with a plea deal that was pretty, pretty inconsequential.
But it's got to be close to that.
I mean, they really are saying that we are the enemy.
The American public are the enemy of the American government if they're telling secrets to us.
All the more so, because if you look at what was released as exhibits in trial, it became clear that they were not, the CIA was not hiding Merlin's identity from Iran.
They had him writing under his own name.
They had him writing under, using his email address that he used at home.
For the first eight months of this operation, he was using the AOL account he shared with his family and kids, his wife and kids, if you believe that.
I mean, I'm aghast.
Like, I'm going to send fake nuclear deals to Iran on the same AOL account.
My kids used to write their buddies.
They had him, his post office box was somewhere close to where he lives in the New York area.
I mean, so Iran knew exactly who this guy was.
This entire operation was premised on the theory that Iran was closely cooperating with Russia, both real Russia and Russian dissidents.
And so if that premise is correct, then Iran had all of the people they needed to go to to say, who is this Mr. Merlin guy?
Because we keep getting these weird emails from him.
So Iran knew exactly who they were because, for the same reasons, and because until Sterling came in, the CIA officer working with Merlin had horrible operational security, continued to meet with him at the same meeting place over and over again.
The Russians would have known.
I mean, you know, Russia, like said, buys in New York City.
We know that.
And if they really cared about tracking what this guy was doing, then they would know exactly what he was doing and they would have good reason to believe that he was meeting with the CIA.
So it's not like Merlin got exposed through James Rice's reporting to Iran and Russia.
CIA told both of them what Merlin was up to, either directly or indirectly.
It's us who learned a little bit about Merlin.
That's it.
Yeah.
Well, and you know, to read Norman Solomon, it seemed like the prosecution was as concerned with trying to deny the scandalous part of the Risen story as much as they were going after Sterling.
They basically spent, you know, most of their time explaining why this operation was great and went off pretty much without a hitch and protecting themselves just from embarrassment as if they're accountable.
I don't know if you saw Walter Pincus had an article saying, oh, this proves that Risen's book is wrong.
And oddly enough, he cited this guy, Babas' testimony.
He was not in the courtroom, Pincus.
And as far as I know, the transcript for Babas' testimony has not been released.
And what Pincus quotes from Babas is very partial.
It doesn't, you know, Babas goes on to admit that Merlin wrote a letter.
The CIA doesn't have copies of either the computer printed letter or the handwritten letter that Merlin left inside a newspaper at the IAEA, the Iranian mission.
And so for some reason, somebody sent Pincus out to go reiterate that in The Washington Post.
But Pincus was wrong.
So I'm about to write a piece making fun of that.
That's funny.
And then I'm going to write a longer piece about why this was such a mess.
I mean, because I think that I think evidence submitted to trial makes it very clear this was even a bigger problem than what Wrighton has in his book.
Yeah, it certainly looks like it.
You know, Gareth, I don't know if you saw his piece for Middle East Eye about it, where he says that the CIA began pretending that they thought Iran had a nuclear weapons program right at the time when they were needing to justify the Merlin program.
And it was the cart that came before the horse there, which was something that he had not figured out before, even though he wrote the book on it.
Right.
Right.
I mean, and that's the other thing.
I mean, we actually called Gareth from the courtroom because this is the nutty thing is they revealed so much about what counterproliferation does.
And so Ray McGovern called Gareth and said, you got to get down here.
This is your beat.
And he did.
But but it was the CIA.
And I did a post on the CIA to avenge Mr.
Merlin, even though, as I said, we had already made it clear to the audience that he was basically exposed a bunch more of their secrets that we otherwise wouldn't know, including that Mrs. Merlin, Merlin's wife, was also a CIA asset and was between one and the both of them.
They were CIA assets all the way up until 2009.
So long after they said that they had stopped having any value secrets.
Right.
CIA spilled those secrets because they need vengeance against Jeffrey Sterling for making CIA look bad.
Right.
Well, that's because there's two standards.
Right.
Well, I've kept you over time there, Marcy, but thank you very much for staying with us.
I appreciate it.
Great interview.
Great to talk to you, Stan.
Great work.
All right, y'all.
That's Marcy Wheeler.
She's at EmptyWheel.net and on Twitter at EmptyWheel.
See you tomorrow.
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