The Department of Justice won big in the trial of whistleblower Jeffery Sterling. It won a conviction against the former Central Intelligence Agency agent on nine felony counts, including espionage, Jan. 26—but did so without forcing a New York Times reporter to reveal his source.
Sterling could be sentenced to spend decades in jail for blowing the whistle on a poorly designed CIA plot to feed flawed nuclear-weapons designs to Iran. He says he went through proper channels, including telling a Congressional oversight committee about the problems with the plan, but prosecutors charged that he had deliberately undermined national security by taking the story to Times reporter James Risen. They alleged that Sterling, who was one of the CIA’s few black agents, was disgruntled because he’d sued the agency for discrimination and lost.
Risen told of the Iran plot in his book, State of War, published in 2006. He was first subpoenaed in January 2008. He fought multiple subpoenas, swearing he would go to jail rather than reveal his source. But the Department of Justice relentlessly pursued him for nearly six years, claiming his testimony was necessary to convict Sterling. The two sides battled all the way to the Supreme Court, which refused to hear the case, letting stand a 4th Circuit Court of Appeals decision in the government’s favor.
Attorney General Eric Holder came under severe criticism from free-press groups for going after Risen (and a number of other actions seen as hostile to the First Amendment). Last May, he defended his polices to a group of journalists, telling them, “As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.” So Holder faced a Catch-22 in the case: If Risen was brought to the stand and refused to testify, the reporter would be sent to jail; but without his testimony, the case against Sterling was purely circumstantial. Earlier this month, the department said it would not force Risen to testify because he had made clear he would not. Nonetheless, Sterling was convicted. As the Times reported:
The Justice Department had no direct proof that Mr. Sterling, who managed the Iranian operation, provided the information to Mr. Risen, but prosecutors stitched together a strong circumstantial case. They described Mr. Sterling, who is black, as bitter and frustrated about what he believed was workplace discrimination. Telephone records and emails showed that Mr. Sterling and Mr. Risen had talked frequently, and prosecutors argued that only Mr. Sterling had the information, the motive and the opportunity to leak it. “The defendant put his own selfishness and his own vindictiveness ahead of the American people,” Eric G. Olshan, a federal prosecutor, said during closing arguments [Jan. 22]. “For what? He hated the C.I.A., and he wanted to settle the score.”
The prosecutors’ reliance on revenge as a motive is disheartening, and sends a signal to other federal employees who face discrimination that they’d best not make waves. Look how it came back to bite Sterling. Investigative reporters rely on government sources and whistleblowers to bring the truth to the American people. The Obama administration has taken a number of steps to shut off this vital and irreplaceable source of information, including its “insider threat” program, rules prohibiting national security staff from talking to reporters, and the prosecution of Jeffrey Sterling. Some journalists’ organizations, however, are not viewing it that way,
Bruce D. Brown, the executive director of the Reporters Committee for Freedom of the Press, an advocacy organization for journalists, said the Sterling conviction showed that forcing reporters to identify their confidential sources was unnecessary and ill-advised. “The speed with which the jury reached its verdict shows that reporter’s testimony was not needed for the government to make its case,” Mr. Brown said. “I think going forward this is going to be a powerful precedent.”
So let’s review: Federal prosecutors won a conviction, won a court decision that will undercut journalists who refuse to divulge their sources in the future, but were able to claim they were protecting freedom of the press when they did not call James Risen to the stand to testify against Jeffrey Sterling. Looks like the Feds got to have their cake and eat it too.