This article first appeared in the St. Louis Beacon, Jan. 8, 2011 - Is Jeffrey A. Sterling a whistleblower who revealed government ineptitude or a spy guilty of espionage? Is Sterling more like Daniel Ellsberg or Julian Assange?
The Justice Department portrays the 1992 Washington University law school graduate and one-time CIA agent as a lawbreaker. It arrested the O'Fallon, Mo. man Thursday on a 10-count indictment accusing him of violating the Espionage Act by leaking classified information to a newspaper reporter.
But Jesselyn Radack of the Government Accountability Project sees Sterling as an authentic whistleblower and goes on to criticize the Obama administration for the record number of criminal cases it has brought against government officials leaking to the press.
To the law, however, it doesn't matter. Even if Sterling is an authentic whistleblower who disclosed a failed intelligence operation against Iran, that status does not protect him from prosecution under the Espionage Act for leaking classified information.
Mark S. Zaid, a Washington D.C. lawyer who handles national security cases, said in an interview that the status of whistleblower "offers absolutely no legal protection whatever and it doesn't excuse the conduct. The level to which someone is a whistleblower will have no impact on that person's potential liability. It may impact sentencing, or it may have a positive societal value, but that's all."
So Sterling is more like Ellsberg -- the leaker -- than Assange of WikiLeaks fame who is the recipient of leaks and their publisher. In general, the law punishes the person who leaks classified information but protects the journalist who receives the leak and publishes it. No journalist has ever been prosecuted under the Espionage Act, although Assange's hybrid role as journalist, publisher and conveyer of leaks is challenging that distinction.
Forty years of history have helped us forget that Ellsberg would almost certainly have been found guilty of espionage but for the Nixon administration's prosecutorial misconduct -- "plumbers" breaking into Ellsberg's psychiatrist's office forcing a judge to dismiss the charges.
Kathleen Clark, an expert on national security law at Washington University Law School, has met Sterling. She invited him to talk to her class about a racial discrimination case he had filed against the CIA.
She said that she is concerned that in the current prosecution the government may be using a public relations strategy of portraying him as disgruntled to isolate him from natural legal allies.
Clark noted that the government used a similar strategy effectively against Samuel Morison, convicted of espionage in the 1980s for leaking information to the defense publication Jane's. The press didn't support Morison until late in the litigation. She thinks the government may be using the same tactic against Assange.
"This reminds me of what the government did in the prosecution of Morison," she said in an interview. "The government portrayed him in a way that isolated him from those organizations that might come to his aid."
The Obama administration has disappointed civil libertarians by filing more criminal prosecutions against leakers than any previous administration. In fact, Zaid says it's more than all previous administrations combined. In addition to Sterling, the administration has prosecuted former FBI linguist Shamai Leibowitz, former NSA contractor Thomas A. Drake, Army Pvt. Bradley Manning and former State Department contractor Stephen Kim.
Radack, whose Government Accountability Project protects government whistleblowers and favors government openness, remarked sarcastically in her blog that the prosecution of Sterling under the "famously ambiguous Espionage Act... gives Obama, the 'transparency' president, the dubious distinction of bringing the most 'leak prosecutions' of any administration, ever."
But neither Zaid nor Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press, thinks that the increased number of prosecutions of leakers means that Obama is any more intent on prosecuting leakers than his predecessor, President George W. Bush.
The increase in the number of leak prosecutions is partly due to technology, Zaid says. It's easier to obtain information to leak and easier for the government to track the leak.
"I don't think it's an indication that this administration takes leaks any more seriously than (its) predecessor," he said. "I think the Bush administration would have been much more vicious. What has made the difference is primarily technology and legal wrangling or judicial intervention."
Ellsberg "took weeks to sneak out all of the Pentagon Papers and copy them and bring them back," he said. By contrast, for Manning, or whoever obtained the WikiLeaks documents, "all he had to do was put a thumb drive into the computer and instantly downloads hundreds of thousands of documents."
But technology gives prosecutors an advantage too, he said, because "there is an electronic trail present that never was before."
For example, Drake, the NSA contractor, used encrypted email called Hushmail to transfer classified information about problems NSA was having in combating potential cyber-attacks.
"But if the government serves subpoenas on Hushmail, now you've got all of the information and you have it dead to rights," said Zaid. "Then you don't even have to go after the journalist for evidence."
Zaid added that prosecutors and judges were more willing to subpoena journalists for information than they once were. "Those in your profession are under a tighter rope with more aggressive prosecutors and judges who, if push comes to shove, are going to go after you. The press has been pushed closer to the precipice than ever before, but clearly they have not been pushed over."
So far at least, the press has come out of the Sterling case relatively unscathed. The New York Times reported that a federal judge in Virginia quashed a grand jury subpoena issued for the testimony of James Risen, the New York Times reporter apparently involved in the Sterling case.
Sterling's relationship with Risen followed the classic reporter-source pattern. Employee leaks damaging information to reporter on promise of anonymity. Prosecutors investigate to find the leaker and the reporter refuses to testify.
The indictment alleges that Sterling, who worked for the CIA from 1993-2002, contacted a reporter after he was upset that the CIA had not dealt fairly with a race discrimination complaint he had made. That reporter was apparently Risen who wrote a story in 2002 about Sterling and his allegations. This may have been part of the process by which a reporter grooms a source to obtain other information.
Risen's story depicted Sterling as a success story -- the only one of six boys growing up in racially divided Cape Girardeau who made it to college and then law school. The story reported Sterling's allegations that he was mistreated while assigned to the Iran desk.
"According to Mr. Sterling," the Times story stated, "a supervisor on the Iran Task Force of the agency blurted out why he had not been given new assignments. As a 'big black man speaking Farsi,' Mr. Sterling 'stuck out' and would draw too much attention to the agency's secret Iranian agent. ... He said, 'You kind of stick out as a big black guy,' Mr. Sterling recalled. I said, 'When did you realize I was black?'"
After the initial story, Sterling and Risen continued to stay in touch. Risen told the CIA in 2003 that he had a story about a botched intelligence operation that may inadvertently have given Iran information that helped it with its nuclear weapons program. The CIA persuaded Times editors not to publish the story, but Risen included it as a chapter in a 2006 book.
Ironically, Zaid said, the chapter got very little attention at the time. But the Bush administration and then the Obama administration pressed to have Risen testify about his sources. Fights over the reporter's testimony dragged on for months, then years. A new grand jury had to be empaneled.
U.S. District Judge Louise Brinkema finally quashed the Risen subpoena. Leslie of the Reporters Committee said he did not know of other cases where a federal grand jury subpoena for a reporter's testimony had been quashed.
But the indictment shows that prosecutors obtained broad access to the email traffic between Risen and Sterling. For example, the indictment quoted "Author A," apparently Risen, sending an email to Sterling in 2004 stating, "I'm sorry if I failed you so far but I really enjoy talking to you and would like to continue."
Leslie said he will be interested to see how extensive the government's search of Risen's emails and phone conversations has been.
Zaid says that the greatest threat to the press is not the record number of prosecutions of leakers, but rather the possibility of a prosecution of Assange for the WikiLeaks disclosures.
"Prosecuting Assange would be a terrible policy mistake," Zaid said. "He's not a journalist like you. He is an editor, he is a publisher. It would be different if there was any evidence that he was soliciting someone to obtain the information. But even that is slippery because there are journalists who say can you get me a particular document."
The law has generally held that leakers, such as Sterling, were subject to prosecution, but leakees were not. First Amendment lawyers fear that moving that line to prosecute Asssange could make it easier to prosecute journalists in the future.
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.