The War on Whistleblowers: Jeffrey Sterling

The Obama administration’s Department of Justice arrested Ex-CIA agent Jeffrey Sterling on January 6, 2011 for leaking information about the CIA’s botched attempt under Pres. Clinton to sabotage Iran’s nuclear program. He is accused of leaking the information to New York Times reporter James Risen, continuing, as the Washington Post put it, “the Obama administration’s unprecedented crackdown on the flow of government secrets to the media. Sterling was charged with 10 felony counts, including obstruction of justice and unauthorized disclosure of national defense information.”

Sterling worked for the CIA from 1993-2002 and served as a case officer on the Iran Task Force. Sterling left Iran in 1999 after his supervisor failed to assign him any new cases because according to Sterling, he was told that as “big black guy,” he “stuck out.” In April 2000, he filed a complaint with the CIA’s Equal Employment Opportunity office. In January 2002, his contract was terminated while the CIA fought to reject his discrimination lawsuit under the doctrine of state secrets privilege. “The federal district court in New York rejected the government’s assertion of the privilege; but, once the case was transferred to Virginia [per the government’s request], the government reasserted the privilege and prevailed.”

Federal 4th Circuit Court ruled in August 2005 that “this case would require disclosure of highly classified information concerning the identity, location, and assignments of CIA operatives. We therefore affirm its judgment that the state secrets doctrine requires dismissal of the case.” Sterling’s lawyer told NBC news that state secrets doctrine “is now commonly involved against federal employees in order to defeat allegations of executive branch wrongdoing,” and that “there is proof in declassified files that Sterling experienced discrimination.” The Supreme Court rejected his appeal (along with ten other agents) in January 2006 (The Supreme Court had rejected FBI whistleblower Sibel Edmonds’ suit two months earlier after the FBI also invoked state secrets privilege).

While the lawsuit progressed from 2001 to 2003, Sterling fed New York Times reporter James Risen (the reporter who profiled his discrimination case in 2002) with information about a top secret CIA operation known as Merlin. In February 2000, the CIA hired a Russian scientist to deliver flawed blueprints for a nuclear weapon to the Iranian government. The CIA hoped that the blueprints contained enough real information to fool Iran into building an inoperable weapon. Unfortunately for the CIA, the Russian noticed the flaws. Rather than call off the mission, the CIA allowed him to move forward. He became so nervous, however, that he included a note with the plans alerting the Iranians to the flaw. In other words, due to the real information included in the blueprints, the plan may have completely backfired and helped Iran’s nuclear program.

The CIA convinced the New York Times not to run the story in May 2003, but Risen published it anyway in his book State of War in 2006, just after Sterling’s lawsuit was rejected by the Supreme Court. The Bush administration was already “investigating” (or more accurately spying on) Risen over his Pulitzer Prize winning article about the NSA’s warrantless wiretapping. Attorney General Alberto Gonzalez admitted investigating Risen in a May 2006 interview with ABC News. “When asked if journalists could be prosecuted for publishing classified information, Gonzales responded, ‘There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility.’ As for the Times, ‘As we do in every case, it’s a case-by-case evaluation about what the evidence shows us, our interpretation of the law.’”

Risen believes that the Bush administration wasn’t terribly interested in the Iran case (since it occurred under Clinton’s CIA), but went after him anyway to retaliate for his NSA story. In his 2011 sworn affidavit about the Sterling case, he wrote that “this investigation started as part of an effort by the Bush Administration to punish me and silence me, following the publication of the NSA wiretapping story.” Risen was ultimately subpoenaed by Attorney General Michael Mukasey in February of 2008, the second time that the Bush administration had subpoenaed a journalist to find a source. The first, New York Times’ Judy Miller, served nearly three months in prison for contempt before relenting (it’s interesting to note that when Bush officials refused to respond to Congressional subpoenas, they were given a legal pass). Risen fought his subpoena and ultimately didn’t testified before the subpoena expired in the summer of 2009. The Bush administration failed to indict Sterling and never uncovered the NSA leak.

When President Obama assumed the White House, Sterling and Risen must have felt that they were in the clear. Obama’s “” website praises whistleblowers. “Such acts of courage and patriotism,” it says, “should be encouraged rather than stifled.” Yet in April 2010, Obama’s Attorney General Eric Holder renewed Risen’s subpoena, asking for the same information. U.S. District Court Judge Leonie Brinkema in Alexandria, Va. granted Risen’s motion to quash the subpoena (without public explanation).Nonetheless, the Justice Department arrested Sterling on January 6, 2011. In February, prosecutors turned over evidence to the defense, which included an orgy of surveillance on James Risen including his bank, credit, telephone, and even airline records. Politico reported:

First Amendment advocates said the Justice Department’s use of business records to find out about Risen’s sources was troubling. Those records, they argue, could potentially expose a wide array of Risen’s sources and confidential contacts — information that might fall beyond the initial investigation that led to Sterling’s indictment. [Exactly what Risen thinks the point of the Sterling investigation is]

“To me, in many ways, it’s worse than a direct subpoena,” said Jane Kirtley, a University of Minnesota law professor and former director of the Reporters Committee for Freedom of the Press. “Third-party subpoenas are really, really invidious…. Even if it is targeted, even if they’re trying to just look at the relevant stuff, they’re inevitably going to get material that exposes other things.” Kirtley also said journalists often aren’t notified when the government asks telecom companies, banks or other service providers for their records.

NBC News reported that “although there have been other public controversies over subpoenas — real and threatened — to reporters in recent years, there have been few, if any, cases in which it has been documented that federal prosecutors obtained the bank records and credit reports of journalists.”

Undeterred by their previous failures, the Justice Department requested a subpoena for a third time in May 2011. Judge Brinkema refused the request in June ruling that “rather than explaining why the government’s need for Risen’s testimony outweighs the qualified reporter’s privilege, the government devotes most of its energy to arguing that the reporter’s privilege does not exist in criminal proceedings that are brought in good faith. Fourth Circuit precedent does not support that position…. A criminal trial is not a free pass for the government to rifle through a reporter’s notebook.”

The Justice Department’s prosecution of Sterling is extremely ironic given that it had argued for nearly five years that any trial for Sterling’s civil suit would endanger state secrets. After the leak, however, the once risk averse DOJ is now willing to endanger these same state secrets in its vendetta against Sterling.

The good news for Sterling is that while his trial is still pending, the Obama administration recently abandoned its case against NSA whistleblower Tom Drake the day before trial, and the judge harshly criticized the governments handling of the case. In his criticism, he described some striking parallels to the Sterling case, “I find it extraordinary in this case for an individual’s home to be searched in November of 2007, for the government to have no explanation of a two and a half year delay, for him then not to be indicted until April 2010, and then over a year later, on the eve of the trial, in June of 2011, the government says, “Whoops, we dropped the whole case.”

Drake plead to a misdemeanor, and the judge refused to even institute a fine pointing out that “there has been financial devastation wrought upon this defendant that far exceeds any fine that can be imposed by me. And I’m not going to add to that in any way.” But according to the government, that’s the point. “My second point,” the prosecutor told the judge, “is the idea of deterrence. And the reason I want to stress this particular point, Your Honor, is because you when you sentence Mr. Drake, you send a message. You send a message to him, but you send a message to others.” That’s the point. Win or lose, for the government, it’s about sending a message.