St. Louis’ forgotten espionage case

Suppose you are an investigative journalist and you have a confidential source who divulges state secrets that you print. The government hunts down the leaker, arrests this person and charges him with a crime. You, the journalist, are the only person who can verify if the leak was actually this person or not. You are subpoenaed, but you won’t give up the name of your confidential source.

Eventually, the government gives up trying to make you speak and tries the leaker without your testimony. The government convicts the person on circumstantial evidence. Prosecutors claim this a victory for the government. Since you never surrendered your source, journalists claim it as a victory as well.

Except for one thing: The person convicted wasn’t your source.

As a journalist, do you have a responsibility to exonerate an innocent man, even if by doing so you expose the true source you are protecting? Or do you remain silent, knowing that you did your job.

Now consider this: The hypothetical may be true.

Former CIA agent Jeffrey Sterling, a Missourian who graduated from Millikin University and Washington University Law School,  recently was sentenced to 42 months for violating multiple counts of the Espionage Act (story).

The conviction was obtained without the testimony of James Risen, a New York Times reporter. Sterling was convicted as Risen’s source in a chapter of the book State Of War, which described a botched CIA attempt to hinder Iran’s nuclear program.  The plot involved a Russian scientist, code named Merlin, giving fake nuclear plans to the Iranians.

The government pinned its investigation on Sterling, who had previously brought a race discrimination claim against the CIA.   Sterling is black and the CIA overwhelmingly white. Sterling also talked to a Senate intelligence hearing about his concerns about the Iranian project.

Sterling fits a mold – disgruntled employee out to get revenge on the organization he thinks mistreated him. One of his lawyers even suggested he’d go public with his concerns. And Sterling had multiple opportunities to talk with Risen. Risen wrote a story about Sterling’s EEOC case in the New York Times.

Sterling has steadfastly denied he was the source for Risen’s chapter. He did not take the stand to defend himself in the trial because his lawyer thought the government had not made its case. But Sterling’s case was tried in Alexandria, Virginia, where many of the people have connections to government or government contracts.

Also, on a case that started as a racial discrimination case, no African Americans served on the jury. In fact, throughout the trial, the only blacks in the courtroom were Sterling and two employees.  The venue was perfect for the government, which secured a sentence of guilty on circumstantial evidence.

Sterling has always denied being the source. In 2012 he went on record speaking to students at Millikin University.  He said he was not a fan of Risen’s silence – even though that silence was viewed in most of the media as intended to protect Sterling.

“I am innocent,” he said. Not only that, but Sterling was quick to point out that his wife was not a fan of Risen’s either.

“I wouldn’t want to put those two in a room together,” Sterling said. “She’s not happy with him.”

Sterling didn’t realize how desperately the CIA would pursue this case and how much the deck would be stacked against him. And the only person who could clear him – Risen – couldn’t.

“One thing that the trial showed me that I really didn’t realize, was that the moment I started complaining about discrimination, a sort of machine came together at the CIA and kept me in its sights from beginning to end,” Sterling wrote after the trial. “Funny how only through the trial I learned that every step of the way I took to legally stand up for myself, there was an Agency person there (the House Committee, the Senate Committee, etc.). “I could go on, but I shouldn’t…just makes my frustration grow. Particularly with regard to a certain gentleman (Risen) who I assume either is mutedly troubled or doesn’t give a damn.”

Sterling was convicted on metadata. There was no hard evidence that convicted him, only circumstantial evidence, made stronger by the theatrics of CIA officials testifying behind screens and an appearance by Condoleeza Rice. Many doubted the government’s ability to prosecute Sterling without Risen. Not only did the government manage to prosecute the case, it got a guilty verdict without Risen.

Sterling was sentenced to Federal prison, claiming to be an innocent man. He felt persecuted by the CIA and abandoned by those who could help but didn’t, especially many in the black community who failed to step up and help in the early days of the case.

“I talked with a lot of people,” he said in 2014. “I talked to the NAACP, the Rainbow Push Coalition, congressmen, senators, you name it. No one wanted to get involved in this.”

In fact, one person, with considerable political influence, a staffer for Missouri’s Lacy Clay actually advised Sterling to move to Canada. Sterling refused.

“I couldn’t do that,” Sterling said. “I couldn’t run.”

Sterling is justifiably angry with is the press, especially mainstream Washington press. For the press, the story was strictly about Risen’s battle with the government and First Amendment issues. The media never questioned Sterling’s guilt or innocence.

“At the trial, you could count the number of media outlets there on two hands and have fingers left over,” said Norman Solomon, executive director of the Institute of Public Accuracy. “Once the Risen case was over, the media lost interest.”

Press members assumed Sterling was Risen’s source. They didn’t look at staff members of the Senate Intelligence committee (where the FBI was looking until the CIA changed its focus to Sterling) to see what they had to say. They didn’t follow up on Risen’s original story about Operation Merlin. And even though Risen said multiple times on the record that he had multiple sources for the story, some of whom couldn’t have been Sterling, the press never followed these leads. Rather, their actions were more in line with Randal Eliason, a Washington, D.C., lawyer and an American University faculty member.

“I have no idea where the truth lies concerning Operation Merlin and I’m certainly no apologist for the excesses of the CIA during the “war on terror.” But given the choice between believing Sterling’s account (as reflected in Risen’s book) and that of the career CIA people who testified at his trial, I see no particular reason to believe Sterling.” (Eliason story)

Eliason is an attorney who could easily think a reporter such as Risen would rely on one source for a story as big as Operation Merlin. The press should know that Risen wouldn’t take a story like that to press without multiple sources. The press should not have assumed Sterling was Risen’s main source for the story.

Instead, the press concentrated on Risen’s struggle against the government and his First Amendment stand. The press turned Risen into a hero. The press concentrated on the so called war between Obama and Whistleblowers (without paying any attention to the whistleblower in Sterling’s case) and the press concentrated on David Petraeus’s sentence compared to those of other leakers, including Sterling. But the press never did its job.

“Sterling could be innocent,” said Marcy Wheeler, who blogs at emptywheel.net, had a seminal story about Sterling in the Nation before the trial (story here) and was present through most of the trial. “He could very easily have steered clear of any confidential sources and pointed Risen in the direction of the story without giving away any details at all.”

During its closing arguments, the defense made just that claim, pointing the finger at defense intelligence staffers Vicki Divoll and Bill Duhnke. Divoll was used by Risen in another chapter of Risen’s book but testified she wasn’t the source. Duhnke never testified.

The defense painted a picture of a journalist doing his job, getting a piece of information and using multiple sources to nail down the (story). It makes more sense than Jeffrey Sterling as the sole source of Risen’s chapter. But the national press never picked up on this story. As a group, the press stayed on the Risen as hero narrative, leaving Sterling alone.

“I’m just a pawn,” Sterling said multiple times. “To the press, I’m nothing. This is all about James Risen to them.

“I’m still in shock that I may go to prison for something that I didn’t do.”

Sterling goes to jail and looks to Risen for the words that would at least make him feel better. Risen is hailed as a First Amendment hero, standing up for reporter’s privilege.  Ethically, Risen can’t say anything about Sterling without jeopardizing his true source, if it isn’t Sterling. But the press, the people who could have truly covered the Sterling case, avoided it. They took the easy way out while lauding a reporter who told an important story and made a stand against the government.  Sterling, who actually did the right things as a government employee by going through proper channels to tell of a mistake, heads to prison.

Risen didn’t fail Sterling – the rest of the press did.

Sterling goes to prison for 42 months, the longest term of any person charged under the Espionage Act during Barack Obama’s presidency. If he was guilty, it’s a fair term. If he was innocent…

Scott Lambert is a journalism/English professor at Millikin University.