Reporters Without Borders is deeply concerned by the precedent set in the United States’ government’s case against a former CIA operative convicted of allegedly divulging classified information to New York Times reporter James Risen.
This statement was originally published on rsf.org on 18 September 2015.
Reporters Without Borders (RSF) is deeply concerned by the precedent set in the United States’ government’s case against a former C.I.A. operative convicted of allegedly divulging classified information to New York Times reporter James Risen. Jeffrey Sterling is now in jail for merely talking to a journalist regularly. He was sentenced based only on circumstantial evidence.
On June 16, 2015 Jeffrey Sterling self-surrendered to the Englewood Federal Correctional Institution in Colorado, almost 900 miles from his home. After a long and grueling trial, this former CIA operative had been found guilty of 7 counts of espionage on January 26, 2015. Even if throughout his entire trial and to this day, Sterling maintains his innocence, he was sentenced in May to three and a half years in prison. Why? This is a long story. To sum up, Sterling was in touch with a journalist. And this is apparently a crime.
In 2006, the New York Times journalist James Risen published a book entitled State of War which highlighted, among others, classified “operation Merlin” designed to derail Iran’s nuclear program to which Jeffrey Sterling was assigned during his time at the C.I.A. On December 22, 2010 a grand jury indicted Sterling on multiple charges under the Espionage Act for revealing classified information to James Risen. The Department of Justice (DOJ) repeatedly threatened Risen with jail time if he did not reveal his source before finally backing off a few months ago.
Sterling went through proper channels to divulge his concerns about the classified operation during a briefing with the Senate Select Committee on Intelligence in March 2003. Yet the jury found Sterling guilty as Risen’s source. But the evidence that formed the basis of his conviction consisted only of multiple emails and telephone conversations between the two men, without any content to directly prove Sterling was the source. The content of most of these emails and phone conversations remains unknown. Only the metadata have been made public.
Circumstantial evidence
Herein lies Reporters Without Borders’ biggest concern: the DOJ built a case against Sterling based entirely on circumstantial evidence, and obtained his conviction in what the BBC aptly named a “trial by metadata.”
“How is it possible that proving the mere existence of contact between a former C.I.A. operative and a journalist is sufficient to convict someone of espionage?, highlights Delphine Halgand, US Director of Reporters Without Borders (RSF). Is a relationship with a reporter the new catalyst for government prosecution of whistleblowers, whether alleged or actual? If anybody can be sentenced in the United States just because he was merely talking to a journalist on a regular basis, where is press freedom heading in the country of the First Amendment?”
After the verdict, Attorney General Eric H. Holder himself said “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”. But leaks are the lifeblood of investigative journalism, given that nearly all information related to national security is considered secret and classified in the United States. In fact, the war on whistleblowers is designed to restrict all but officially approved versions of events.
There is no doubt that the location of Sterling’s trial in the Eastern District of Virginia also had an effect on the verdict: a large part of the jury pool possesses security clearance for various types of jobs within the government. And to make matters worse, the DOJ was able to hide many of its witnesses behind screens to conceal their faces, kept their full names a secret in the courtroom, and even distributed documents to the jury labeled “top secret” to complete their dog and pony show on classified information.
Made an example
“It is clear to Reporters Without Borders that the DOJ chose to make an example of Jeffrey Sterling, to warn government employees against talking to journalists”, says Margaux Ewen, Advocacy and Communication officer at Reporters Without Borders USA.
The United States has witnessed an alarming trend in curtailing freedom of information consistent with its decline in Reporters Without Borders’ 2015 Press Freedom Index. The United States now ranks 49 out of 180 countries, a 14-place drop since 2012. President Barack Obama’s war on whistleblowers played an important role in this decline: the Obama administration has prosecuted a total of 8 whistleblowers under the Espionage Act, which is more than any previous administration combined.
Reporters Without Borders stands with Jeffrey Sterling and supports him in his efforts to appeal his conviction. Like his wife Holly Sterling told Reporters Without Borders, “Jeffrey was wrongfully sentenced to prison and is now living a life that no one should have to endure. Jeffrey and I decided to appeal as we cannot give up hope that someone or hopefully many, will realize the wrong that has been done and those with the ability to do so will make the only correct decision and Jeffrey will be vindicated. I will not cease discussing this tragedy in hopes that it will garner enough support for a successful appeal.”
According to the prosecution, Sterling “had it out for” the C.I.A. after his unsuccessful employment discrimination lawsuit, and this served as his motive for divulging information to Risen. Sterling is the first African American to file such a suit against the agency.
Of the American whistleblowers punished for allegedly leaking classified information to reporters, it seems that midlevel government employees have received the harshest sentences. Like Jeffrey Sterling, John Kiriakou was a C.I.A. operative who was sentenced to 30 months in prison in 2013 after taking a plea bargain. He admitted to revealing the identity of a covert operative to a reporter, though this information was never published. It is widely believed that Kiriakou was targeted for exposing the agency’s use of waterboarding during interrogations.
At the opposite end of the spectrum, high level officials like retired general and former C.I.A. director David Petraeus have received a simple slap on the wrist. Petraeus plead guilty to revealing classified information to his biographer Paula Broadwell, who was also his mistress, in April of this year. Although the information he revealed did not get published in his biography, he also made false statements to F.B.I. agents that he did not leak said information. Yet the DOJ requested he receive probation instead of prison time.
