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Jeffrey Sterling convicted of espionage on circumstantial evidence

In 2003, New York Times journalist James Risen called US government representatives to ask about a covert CIA operation to disrupt Iran’s nuclear programme. Eager to root out any information leak that doesn’t present the administration in a positive light, the government began investigating who Risen’s source or sources might be. The Times ultimately killed the story at the government’s request, but Risen published some of it in his 2006 book ‘State of War.’

Risen’s suspected source, Jeffrey Sterling, has now been convicted of nine felonies, including Espionage (see his indictment), for allegedly disclosing classified information. Sterling. a former CIA officer, had his security clearance revoked in 2001 and then was fired in 2002, after he filed an official complaint of racial discrimination.

Sterling’s defence has argued that the government could not even prove that Risen’s source was Sterling, let alone that the alleged disclosure constituted espionage. Much of the controversy surrounding the case centered on whether Risen would be forced to testify against his source or sources. Risen fought the subpoena, with fellow journalists and civil liberties condemning the notion that a reporter should have to give up his sources, but the government won an appeal and compelled him to testify. However, just before the trial commenced, the DOJ reversed course and decided not to call Risen to the stand.

Still, the case proceeded:only the second espionage case to go all the way to trial (the first was US Army whistleblower Chelsea Manning, now serving 35 years in jail). But the prosecution’s case against Sterling has been entirely circumstantial, as even the judge in his case, Judge Leonie Brinkema, conceded. As Marcy Wheeler writes for ExposeFacts, which has been covering the trial in depth:

The only evidence of phone calls between Sterling and James Risen immediately before Risen went to the CIA with a fully drafted story on the Merlin operation consists of 2 minutes and 40 seconds of calls, total, across 7 phone calls. Then there’s one email in which Sterling sent Risen a link to an unclassified article on Iran posted by CNN.

Two minutes and 40 seconds for what would likely have been a 1000-word story?

The government also failed to convincingly prove that Sterling, if involved, was Risen’s lone source for the information in question: as Wheeler writes, prosecution witness “FBI Agent Ashley Hunt, admitt[ed] she had not even tried to gather evidence from some of the other possible sources for Risen, and had not succeeded for others.”

The jury deliberated for days and initially returned to the judge undecided, but it ultimately convicted Sterling of all nine counts. The sentencing trial is scheduled for 24 April. Sterling could theoretically face more than 100 years in prison, though judges in similar cases usually sentence concurrently — still the potential sentence is many years of jail time.

Sterling’s conviction is another landmark in the Obama Administration’s ongoing, unprecedented, and speech-chilling war on disclosures of information and therefore on the journalism these sources make possible. Government Accountability Project’s Jesselyn Radack, a whistleblower lawyer and DOJ whistleblower herself, swiftly condemned the conviction: “I’m frankly appalled that the jury would convict based on a purely circumstantial case,” Radack told Foreign Policy, calling the decision “a new low in the war on whistleblowers.”

As Foreign Policy continues, “While she thought an appeal very likely, Radack said the conviction would both discourage government sources from disclosing important information to journalists and intimidate reporters who might otherwise try to dig up such stories.”

Just after the jury delivered its verdict in Sterling’s case, the Department of Justice issued a press release claiming that whistleblowers can be prosecuted “without interfering with journalists’ abilities to do their jobs.” Nothing can be further from the truth. There is already evidence that the US government’s persecution of truthtellers has already silenced those in government who are otherwise compelled to reveal evidence of abuse and wrongdoing. Guardian journalist Maggie O’Kane said in 2013 that she and her colleagues spent six months trying to speak to soldiers, but that all but one were too afraid to speak out after seeing what happened (from prison abuse to a massive charge sheet) to Chelsea Manning. This chilling effect hinders journalists’ ability to do their jobs and citizens’ ability to hold their governments accountable.