Jeffrey Sterling is free–but are we?

[Originally published 2/1/2018 at Whistleblowing Today]

Jeffrey Sterling, a whistleblowing former CIA employee, emerged from prison last month after serving most of a 42-month sentence. Like his trial, his release drew little media attention, but his case has important implications for all Americans at a critical time in US history.

The federal government arrested Sterling in 2011 and charged him with violating the Espionage Act in allegedly passing classified information to a reporter. It based the charges on circumstantial evidence:  “envelope” information or metadata, including the dates and times of calls made between two telephone numbers. One number belonged to Sterling, who had lawfully  informed members of the Senate intelligence committee about a “bungled” secret CIA program named “Merlin.” The other number belonged to James Risen, a New York Times reporter who later criticized the program in his 2008 book, “State of War.”

The content of the communications was unknown, and 90 other people besides Sterling had knowledge of the CIA program. Sterling, moreover, had a lawful motive for contacting Risen: The reporter had written a 2002 article about Sterling’s race discrimination complaint against the agency. Sterling was denied his day in court after the agency convinced a judge that the legal process would reveal government secrets. It had no objection, however, to a court case with Sterling as the defendant.

The federal government’s prosecution of Sterling was the definition of Kafkaesque.

Prosecutors arranged for trial in an Alexandria, Virginia court reportedly favorable to the federal government by having the Virginia hairdresser of an FBI agent testify that she had read Risen’s book.

For evidence that Sterling mishandled classified information, the government introduced the agency’s 1987 instructions for using a rotary telephone, which it had to retroactively classify.

The FBI interviewed the attorney who handled Sterling’s discrimination lawsuit, and the Department of Justice (DoJ) worked diligently to force Risen to name his sources. Ultimately, the government obtained a favorable court ruling, but afterward withdrew its demand. Perhaps, it knew Risen’s testimony would not be helpful, but the ruling was a powerful weapon it could unleash at a future date.

While prosecutors showed that Risen and Sterling contacted one another dozens of times, [defense attorney] Pollack said that nothing the government presented to the jury showed that the two had discussed any classified information. Defense attorneys argued that Capitol Hill staffers who had been briefed on the operation were more likely to be the source of the leak because some of the information in Risen’s book addressed things that happened after Sterling left the CIA, the Washington Post reported.

Short on evidence, the prosecutor resorted to attacks on Sterling’s character, calling him “angry” and “bitter” and accusing him of putting “his own selfishness and his own vindictiveness ahead of the American people.” The accusations sounded, however, like a projection of the federal government’s own attitude with respect to whistleblowers, who have been threatened, beaten, smeared, gaslighted, fired, imprisoned, financially ruined, forcibly hospitalized, falsely prosecuted and driven to suicide by their bosses.

Northern Virginia is known for having a large number of workers with government security clearances. With their own careers possibly on the line, it’s probably not surprising that Sterling’s jury accepted the government’s thread-bare arguments and, on January 26, 2015, found Sterling guilty on nine counts of “unauthorized disclosure of national defense information and other related charges.”

A Star -Ledger (NJ) editorial blasted the verdict. “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.”

Phillip Geraldi, a former CIA officer, wrote, “the jury convinced Sterling based on “suspicion,” a verdict that defense witness Col. Pat Lang, former head of the Defense Intelligence Agency’s clandestine program, described as a “travesty.”

Norman Solomon, who was one of the few journalists who observed the entire trial, called it “a disturbing, though scantly reported, simulation of justice,” and  called out press-freedom advocates for self-interest.

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.

Sterling maintained his innocence in a June 2017 op-ed for the St. Louis Dispatch.

“Though I have persistently maintained that I never disclosed any classified information to Risen and was only in touch with him regarding my discrimination case against the CIA, I was nonetheless convicted of espionage based solely on metadata from phone calls and emails we had exchanged. Despite the lack of any direct evidence proving I was the source for Risen’s book, I am now serving the second year of my three-and-a-half-year prison sentence.”

“During my time working for the CIA, I felt compelled to report my concerns about Operation Merlin to the Senate Select Committee on Intelligence, as I believed the operation would compromise the safety of the American people and our troops who were being sent to war in Iraq. By approaching this committee, I followed legal protocol. For this I was labeled a whistleblower.”

In April 2017, Michael Hayden, CIA Director from 2006 to 2009, provided insights on the government’s handling of Sterling’s case in an ironically titled op-ed, “Courage, Integrity and Accountability at the CIA.”  Professing to be “uncomfortable” with the use of the Espionage Act to prosecute whistleblowers, Hayden cited the failed prosecution of Thomas Drake under that law. He then turned immediately to Jeffrey Sterling’s case.

I was long out of government when a jury finally rendered a guilty verdict, but when the case first began during my tenure as CIA Director, the U.S. Department of Justice (DOJ) had asked me, “How much classified information are you prepared to reveal at trial to get a conviction of Sterling?”

By then unauthorized leaks had become so routine that I decided to break with tradition (which was to be cautious) and simply told DOJ, “Whatever it takes. Just tell us what you need.” The cumulative effect of previous, cautious, and individually correct decisions to guard against further disclosures at trial had fostered a climate of impunity on the part of those revealing legitimate secrets. Note that there was no claim to whistleblower status here, either. Failed, clumsy, or even stupid covert actions aren’t a crime. [emphasis added]

Hayden’s claim that whistleblower status required reporting a “crime” is provably false. The Intelligence Community Whistleblower Protection Act (ICWPA) allowed IC employees to report an “urgent concern” to the agency’s Inspector General and, ultimately, to the congressional intelligence committees. Both Drake and Sterling adhered to the ICWPA rules but were slammed, anyway. Hayden also erred in calling Drake’s case a “leak” case. Drake, as a National Security Agency executive, went through channels to express concerns about a classified program, Trailblazer.

The government’s handling of Drake’s case was a huge black eye for the Obama administration, seemingly obsessed with imprisoning whistleblowers and possibly journalists, too. After the government dropped its serious charges against Drake on the eve of trial, Judge Richard D. Bennett lashed out at DOJ prosecutors for putting Drake through “four years of hell.”  When that occurred in 2011, the administration would have been desperate for a win. It needed a sacrifice to the god of secrecy and promptly designated Sterling the sacrificial lamb.

In reviewing national security whistleblower cases, it is immediately obvious that senior government officials will do  “Whatever it takes,” as Hayden put it, to make a bloody example of any federal worker who takes seriously the federal oath of employment. That oath requires feds to defend the Constitution against all enemies foreign and domestic; not to defend secrecy, corruption or senior officials.

The Sterling case has implications for the rest of the country that are more important now than ever, with ongoing investigations of possible abuses of power by the intelligence community. To prevent abuses and hold government officials accountable, journalists and whistleblowers need strong protections against government reprisal. But, in its prosecution of Sterling, the Justice Department cast a chill over journalism and whistleblowing alike. It produced a court ruling that journalists can be required to testify about their sources. It created a sword of Damocles, the threat of prosecution by metadata, that now hangs over the head of every current and former government employee who contacts a news organization, even for the most innocent of reasons. As a result, “Trusted sources in Washington are scared to talk by telephone, or by email, or even to meet for coffee, regardless of whether the subject touches on national security or not,” said a New York Times reporter.

In using Sterling’s lawful whistleblowing against him, DoJ exposed as a lie the Obama administration’s claim that Edward Snowden could have escaped negative consequences by going through “channels.” Sterling used those channels. They channeled him straight to jail.

The full impacts of Sterling’s case will not be known for years but potentially affect every person in the United States. The government collects a mountain of metadata for virtually every person in the country. A computer program called ICREACH is capable of “searching two to five billion new records every day, including more than 30 different kinds of metadata on emails, phone calls, faxes, internet chats, and text messages, as well as location information collected from cellphones,” and gives access to “a vast pool of data that can be mined by analysts from across the intelligence community.” That translates to billions of opportunities for government to accuse someone of a crime based on nothing more than metadata showing a relationship or communication between two people–who may know little or nothing about one another.

The ordeal of Jeffrey Sterling was a warning to all:  In the hands of officials conducting a witch hunt, metadata become a weapon of mass injustice.