The Latest Blow in the Government’s War on Journalism
It’s a warning shot—not only against whistleblowing but against basic
communication with journalists by government employees.
By Norman Solomon
May 13, 2015 "Information
Clearing House" - "The
Nation" - The sentencing of former CIA officer Jeffrey
Sterling on May 11 for espionage ends one phase of a long ordeal and begins
another. At age 47, he has received a prison term of 42 months—three and a half
years—after a series of ever more improbable milestones.
The youngest of six children raised by a single mother, Sterling
was the only member of his family to go to college. He graduated from law school
in 1993, worked briefly at a public defender’s office, and then entered the CIA,
where he became one of the agency’s only African-American case officers. In
August 2001, Sterling became the first one ever to file a lawsuit against the
CIA for racial discrimination. (His suit, claiming that he was denied certain
assignments because of his race, was ultimately tossed out of court on grounds
that a trial would jeopardize government secrets.) Soon afterward, the agency
fired him.
Sterling returned to his home state of Missouri and restarted
his life. After struggling, he found a professional job and fell in love. But
the good times were short-lived. One day in 2006, the FBI swooped in for a raid,
seizing computers and papers at the small home that Sterling and his fiancée
shared in a suburb of St. Louis. Slowly, during the next four years, without
further action from the government, the menacing legal cloud seemed to disperse.
But suddenly, a few days into 2011, Sterling was arrested for the first time in
his life—charged with betraying his country.
The indictment included seven counts under the Espionage Act,
the 1917 law that President Obama’s Justice Department has used to prosecute
more whistleblowers than all other administrations combined. The key charges
accused Sterling of “unauthorized disclosure of national defense information,”
alleging that he gave details of a secret CIA operation to a journalist while
falsely characterizing it in negative terms. The government contended that
Sterling should remain in custody until trial because—with “underlying selfish
and vindictive motivations”—he would try to “retaliate in the same deliberate,
methodical, vindictive manner.” A judge rejected that argument and released him
on bond. But Sterling’s arrest had triggered his immediate firing by Anthem
Healthcare (where his work as a medical fraud investigator won a national award
for uncovering $32 million in bogus charges), and suddenly even low-wage
employment was out of reach. As a breadwinner, Sterling was toast. His wife,
Holly, a social worker, continued to bring in a modest income as they waited for
the trial.
The wait lasted four years. Most of the pre-trial legal
maneuvers had to do with James Risen, the New York Times reporter whose
2006 book, State of War, had spurred the FBI leak investigation that
ended with Sterling’s arrest. The book included a chapter with classified
information about Operation Merlin, a CIA program that in 2000 provided Iran
with flawed design information for a nuclear weapon component. Despite subpoenas
and jail threats, Risen kept refusing to identify any confidential source. The
government prevailed on appeal with its claim that journalists have no right to
such a refusal, but—after growing pushback from press-freedom advocates and
worsening optics in the court of public opinion—the Justice Department finally
gave up on forcing Risen to cooperate. (For background, see Norman Solomon and
Marcy Wheeler, “The
Government War Against Reporter James Risen,” October 8, 2014.)
The federal courtroom in northern Virginia where Holly and
Jeffrey Sterling returned for the sentencing on May 11 was the scene of a
disturbing, though scantly reported, simulation of justice in late January. At
the outset, covering the trial, I noted that “prospective jurors made routine
references to ‘three-letter agencies’ and alphabet-soup categories of security
clearances.” Steeped in a local atmosphere of deference to mega-employers like
the CIA and Pentagon along with numerous big contracting firms nearby, “the jury
pool was bound to please the prosecution.”
* * *
In the government’s opening statement, head prosecutor James
Trump told jurors that Sterling had committed crimes of betrayal due to his
“anger, bitterness, selfishness”—a theme and theory of the case that the Obama
Justice Department was to reprise often with its mosaic of CIA testimony and its
boffo PowerPoint closing argument: claiming that Sterling became vengeful
against the agency when he failed to win his legal complaint against it for
racial discrimination. The prosecution was gratified two weeks later when the
nearly all-white jury, which included no African-Americans, voted guilty on all
counts.
Few news reports about the verdict provided any context, but
that was true of the entire trial’s overall sparse coverage. During the seven
days of proceedings, I rarely saw more than five other journalists in the
courtroom. But the trial for United States of America v. Jeffrey Alexander
Sterling was extraordinary, for reasons far beyond the fact that it was the
first time a jury considered Espionage Act charges that a CIA employee had
leaked classified information to news media.
During the first half of the trial, the prosecution was often
fixated on insisting that Operation Merlin was a nearly perfect program
implemented by a nearly perfect agency. The government condemned Sterling for
having a very bad attitude in addition to doing a very bad thing. Hour after
hour, he stood accused of wrongly disparaging the CIA’s über-wise
competence—legally to Senate Intelligence Committee staffers, and then illegally
to the world, via Risen.
A cast of twenty-three CIA witnesses played their “national
security” roles as agents of patriotic virtue. And Condoleezza Rice did a
dramatic star turn (the press showed up for that one). Rice testified to the
great importance of Operation Merlin, explaining that she carefully stuck to the
talking points provided to her by the CIA when, as President George W. Bush’s
national security adviser, she hosted a meeting with Times reporter
Risen and Washington bureau chief Jill Abramson—an intervention by the White
House that succeeded in keeping the scoop out of the newspaper (and away from
the public, until Risen’s book came out more than two and a half years later).
The meeting took place at the end of April 2003, just a few weeks after the
invasion of Iraq.
During a trial that revolved around Washington spin about
specters of nuclear weapons in the Middle East, the government was able to
shield the CIA and the former secretary of state from scrutiny, even though—and
precisely because—testimony in the courtroom could have illuminated their actual
records of crying nuclear wolf while laying the groundwork for war. During cross
examination, the government was able to nip in the bud an effort by defense
lawyer Barry Pollack to provide the jury with some key background on the Bush
administration that Rice served:
Q: [P]reventing working
nuclear weapons from falling into the hands of rogue states is one of the most
important missions of your, the administration you worked for certainly—
Rice: Yes.
Q:—and any other
administration, correct?
Rice: That’s correct.
Q: And certainly
counter proliferation was of great interest at this particular time, correct?
Rice: That’s correct.
Q: The United States
had invaded Iraq the earlier month?
Prosecutor Eric Olshan:
Objection.
Judge Leonie Brinkema:
Well, we’ve heard that before. Let’s just move this along, Mr. Pollack.
Sustained.
And so it went, during a trial that alternately expanded and
contracted its purview to accommodate prosecution needs. The scope went global,
to vaguely yet emphatically assert vast harm from Sterling’s alleged
disclosures. Yet it narrowed to tunnel vision whenever convenient to exclude
information that could explain why anyone might not defer to the judgments of an
agency that had skewed its intelligence for war, or might doubt the credibility
of a former Bush national security adviser who had called for the invasion of
Iraq while warning, “We don’t want the smoking gun to become a mushroom cloud.”
On the trial’s last day—in the same closing argument that
insisted “this case is not about politics” and “it’s not about salvaging the
reputation of the CIA”—the prosecution began with a quote from Rice about the US
government’s grave responsibility to prevent nuclear proliferation. Three months
later, in late April, the Justice Department filed a 24-page
sentencing memo that began with a bold-italics quote from Rice’s testimony:
“I was deeply concerned because this was not just a sensitive program, but it
was one of the only levers that we believed we had, that the President had, to
try to disrupt the Iranian nuclear program.”
Rice’s superstar appearance was in sync with what one attorney
called the “hocus pocus” of the trial, complete with a tall office divider that
kept many of the CIA witnesses screened off from public view. For no evident
reason other than to impress jurors with the sanctity and gravity of
classification, the prosecution distributed to the jury a file stamped “SECRET”
in big letters across the front, before the judge ordered a bailiff to take the
file back only minutes later. The heavy-handed message was that top officials
who knew best were operating with the kind of essential secrecy that the
defendant had dangerously breached.
In a trial with twists and shadowy subplots that seemed
countless, two aspects—nearly hidden in plain sight—are among those in greatest
need of scrutiny. What passed for incriminating proof amounted to nothing more
than circumstantial evidence in the form of metadata about e-mails and phone
calls. And the government won guilty verdicts for some of the Espionage Act
charges on the mere basis that Sterling “did willfully cause” Risen to disclose
classified information. In effect, the cumulative ambiance in the courtroom was
white noise in the service of a prosecution that not only arranged a crescendo
of circumstantial evidence but also of circumstantial allegations. The
government impugned Sterling’s motives and character while encouraging the
jurors to assume that he would have tried to steer Risen toward classified
information—despite the complete absence of evidence that the defendant had
actually given him any. The circumstantial evidence, implying that Sterling had
“caused” the release of such information, was enough. (Disclosure: After the
guilty verdict, I used my frequent-flier miles to get plane tickets for Holly
and Jeffrey Sterling so they would be able to go home to St. Louis.)
* * *
The successful prosecution of Jeffrey Sterling has given more
leverage to the information clampdown that the Obama administration continues to
implement. With a multi-count Espionage Act conviction, it serves as yet another
warning shot—not only against whistleblowing and disclosure of classified
information, but also against basic communication with journalists by government
employees and contractors.
Over decades, while interviewing sources with security
clearances, hundreds of journalists have had the experience of asking questions
and receiving a reply along the lines of: I can’t tell you the answer
because it’s classified, but I can tell you (fill in the blank). Such
responses mean that sources can be helpful to a reporter’s investigative process
without disclosing any classified information. But one of the evident aims of
the Sterling prosecution was to strengthen government efforts to choke off such
communications. The not-so-subtle gist: Telling a journalist anything that might
lead to coverage of classified information could be a basis for prosecution and
conviction. The Sterling case stands as a calculated warning to government
employees that Espionage Act charges could result from assisting any journalist
for a story that might wind up reporting classified information.
Such legal constructions fit tongue-in-groove with the agenda
of the intelligence hierarchy under Obama. For years now, the administration’s
“Insider Threat” program has formally encouraged millions of government
employees to monitor each other for—and report on—signs of ideological or
attitudinal deviance. An order from National Intelligence Director James Clapper
warned employees of all intelligence agencies not to give any journalist non-classified
information without first getting authorization. Such measures are part of a
calculated progression that aims—via bureaucratic edicts as well as legal
harassment and criminal prosecutions—to normalize an atmosphere of fear and
reflexive self-constraint, blocking the unauthorized delivery of information to
the public.
For prospective whistleblowers, the Sterling case is yet more
proof that they can “go through channels” to express concerns only at their
peril. Particularly in security-state realms—as the experiences of
NSA whistleblowers William Binney, Thomas Drake, Edward Loomis and Kirk
Wiebe have shown—using the much-ballyhooed official channels to report concerns
is a flag that draws official retribution. During Sterling’s trial, the
prosecution repeatedly used against him—as supposed indications of hostility
toward the agency and motive for wrongdoing—the fact that he had gone through
legal channels to file suit alleging racial bias and to report his concerns
about Operation Merlin to Senate Intelligence Committee staffers.
* * *
While defending the rights of journalists, some press-freedom
advocates haven’t seemed to mind much when a whistleblower goes to prison.
Others, even more disturbingly, seemed to express satisfaction at the Sterling
verdict, as proof that the government had been wrong in its claims in prior
years that it needed Risen’s testimony to gain a conviction. This theme was
sounded by Attorney General Eric Holder right after Sterling’s conviction, when
he issued a statement that crowed: “As this verdict proves, it is possible to
fully prosecute unauthorized disclosures that inflict harm upon our national
security without interfering with journalists’ ability to do their jobs.” This
attitude is a wedge being driven between journalists and whistleblowers—shorn of
euphemisms, it often amounts to journalists good, whistleblowers not.
But to support journalists and not the whistleblowers who provide them with
information is akin to cheering only the last baton-holder in a relay race.
In an essay that went to press while the Sterling trial was
under way, veteran journalist Steve Coll
explained that “the Obama administration’s resort to the draconian
provisions of the Espionage Act against Sterling was just one case in a series
of overreaching prosecutions of journalistic sources carried out by Eric
Holder’s Justice Department.” Coll added: “In more than one instance, the
Justice Department took positions that came close to criminalizing the act of
professional reporting on classified subjects. In a pretrial filing in the
Sterling matter, for example, prosecutors in the US Attorney’s office for the
Eastern District of Virginia argued vehemently that Risen was an important
eyewitness to a felony because the reporter had allegedly interviewed Sterling,
who had given him classified information.”
Supporters of press freedom who denounce the government’s
threats against journalists should fight just as hard against efforts to
imprison the whistleblowers whom journalists depend on—that, after all, is how
the flow of vital information reaches the public. But so far, overall, the media
establishment has failed to defend the whistleblowers who make possible the
“professional reporting on classified subjects.”
The Justice Department’s legal siege of Sterling, which has
spanned two administrations and 10 years, can be understood as part of a regimen
that winks and nods, or wrist-slaps, when classified information is leaked from
on high—often to manipulate public opinion—while fiercely prosecuting alleged
leakers who expose government officials or policies as inept, destructive or
mendacious. The Senate Intelligence Committee’s recent report on torture
documented that the CIA press office itself gave classified material to favorite
journalists to make the agency look good. Even when major leaks from powerful
officials are unauthorized, the penalties are nonexistent or tiny—as exemplified
by the April 23 sentencing of former CIA Director David Petraeus, who gave
briefing books with highly classified information to his journalist paramour and
then lied to the FBI about it. Petraeus received no jail time after a cozy plea
deal with the Justice Department. The same Justice Department declared that an
appropriate prison sentence for Sterling would be in a range of 19-24 years.
There was grim symbolism in the eleventh-hour postponement of
Sterling’s sentencing until May 11, rather than the long-scheduled date of April
24. The original date—just one day after Petraeus’s sentencing—would have
provided an especially stark contrast.
The Petraeus plea deal has provoked criticism and even outrage
from some newspaper editorial boards. In an understated editorial titled “Gen.
Petraeus’s Light Punishment,” The New York Times observed that “top
officials, who often seek to advance self-serving political agendas in their
dealings with the press, appear to enjoy significant leeway in disclosing
classified information”—while, “in sharp contrast, the government has been
unsparing in its prosecution of lower ranking officials who have shared
sensitive information for more defensible reasons.” The Los Angeles Times
editorialized that “the whiff of a double standard is overwhelming” and
concluded, “That may be the way of the world, but it’s not justice.”
A more caustic response came from New Jersey’s largest
newspaper, the Star-Ledger, under a headline that summarized the status
quo this way: “Whistleblowers
wacked, all-star generals walk.” Noting the sweet deal that Obama’s Justice
Department had gifted to Petraeus, the Star-Ledger editorial said:
“What makes it galling is how Petraeus compares to men like Jeffrey Sterling,
who was convicted by a jury for being the main source of James Risen’s book
about a CIA op designed to sabotage Iran’s nuclear program. There were nearly
100 people who could have been the source, but Sterling was convicted on
circumstantial evidence because the DOJ likes to go after whistleblowers.”
Such clarity from big media remains unusual. But similar
assessments are becoming more frequent and vehement—as more people recognize the
grim injustices for whistleblowers and the dire consequences for democracy.
Amid all the convoluted doublespeak from the Obama
administration, Jeffrey Sterling is paying a tragic price.
Norman Solomon, executive director of the Institute for Public
Accuracy, coordinates its ExposeFacts.org project.
His books include War Made Easy: How Presidents and Pundits Keep
Spinning Us to Death. Solomon is a co-founder of RootsAction.org,
which has encouraged donations to the Sterling Family Fund.
See also
Press Freedom Groups Denounce NSA Spying on AJ Bureau
Chief: Ahmad Muaffaq Zaidan doesn’t deny that
he’s had contact with terrorist groups. But the fact that Zaidan is a respected
investigative journalist and the Islamabad bureau chief for Al Jazeera didn’t
seem to faze the U.S. National Security Agency, which not only spied on him, but
went as far as to brand him a likely member of Al Qaeda and put him on a watch
list.