Obama’s War on Leaks Skirts the Constitution
The Obama administration is gloating over the recent conviction of Jeffrey Sterling in an Alexandria, Va. federal court for allegedly leaking details of a secret government program called Operation Merlin that was intended to damage Iran’s nuclear program. Attorney General Eric Holder described the verdict as “…a just and appropriate outcome. The defendant’s unauthorized disclosures of classified information compromised operations undertaken in defense of America’s national security. The disclosures placed lives at risk.”
But some serious doubts persist over whether Sterling actually did anything illegal. Sterling was charged and convicted on nine counts, seven of which pertain to the Espionage Act of 1917, which was mostly of interest to antiquarians before it was taken off the shelf and used by the George W. Bush administration and subsequently employed even more frequently by Barack Obama’s increasingly reactionary Justice Department. The Espionage Act, designed to catch and convict enemy agents during wartime, gives the prosecution considerable leeway in terms of how it defines and conducts its case. Prosecutors can cite national security as an excuse to limit what would be considered normal constitutional protections such as the right to confront one’s accuser. They can also restrict access to certain types of information on national security grounds and order investigations within the government definition of what constitutes probable cause, to include someone’s searching the internet for information that might be regarded as “suspicious.”
Prosecutors can also divide their case into separate counts to ensure success even if there is a failure to convict on some of the charges. Even though Sterling was accused of only one leak the specific counts against him included seven separate elements linked to the alleged crime. Mimicking the curious language employed by the Act itself, two of the charges include causing journalist James Risen to write a 2003 article, as well as the account of Merlin contained in his bookState of War.
There have also been a number of interesting subplots during the investigative and subpoena processes that preceded the actual trial, which have played out over the course of more than five years. Sterling, who may or may not have revealed details of the secret government program, has been hailed as a whistleblower by defenders responding critically to the high level of government secrecy prevailing during the past 14 years. The government prosecutors for their part claimed that Sterling had revealed details of Operation Merlin to Risen, who in turn described the program both in detail and in extremely negative terms in State of War, which came out in 2006.
The initial interaction between government and governed involved the prosecutors attempting to force Risen to reveal his sources for Operation Merlin. Risen, who claimed only that he had multiple sources for his story, refused to do so and was prepared to go to jail. The government eventually backed off in January, declaring that it would not force Risen to testify and allowing the trial to proceed. Risen was removed from the list of potential government witnesses and the prosecution made its case based purely on circumstantial evidence.
Sterling, who had gone through established whistleblower channels in his attempt to expose the failings of Merlin by approaching the Senate Intelligence Committee in 2003, insisted that he was not the source for Risen. His defense team suggested instead that someone on the congressional staff could just as easily have leaked the information, an alternative that was not seriously considered by the government attorneys.
Once the trial started, the prosecutors focused on discrediting Sterling as a government employee, citing an alleged poor work record and history of disgruntlement that led to a claim of racial discrimination, while producing a series of witnesses who were allowed to testify from behind screens and using only their first names so they could not be identified. The prosecution then moved on to trying to prove that Operation Merlin was important, a government secret worthy of protection and one whose disclosure had done enormous damage. Among others, former National Security Adviser and Secretary of State Condoleezza Rice testified to the value of the program.
Merlin involved giving defective plans for a nuclear weapon to Iran by way of a Russian scientist who was paid more than $400,000 to serve as the principal agent for the transfer. Risen’s view, expressed in his book, was that Merlin was ill-conceived, mismanaged, and disastrous. It was “hopelessly botched, and possibly backfiring by giving the Iranians blueprints that could be useful to them if they sorted out the good information from the errors.” He called it an operation “conducted in the darkest corner of the American national security establishment.”
The government prosecutors made no effort to prove that Sterling ever actually spoke to Risen about Merlin because the evidence to support that assertion did not exist in spite of an exhaustive years-long investigation. Sterling did indeed exchange numerous phone calls and emails with Risen, many of which were monitored by the Federal Bureau of Investigation, but Merlin was not mentioned. The government claimed that Risen’s view of Merlin paralleled that of Sterling as expressed when he addressed the issue with the congressional staff, but there was no actual smoking gun. Prosecutors attempted to demonstrate that Sterling had motive, opportunity, and access. So it had to be him.
Col. Pat Lang, former head of the Defense Intelligence Agency’s clandestine program, was a consultant for the defense, though he was not called to testify. He described the outcome as a “travesty” as there was no actual evidence confirming that Sterling was a source for the book. Indeed, some of the information in Risen’s book relating to Merlin could not have been known by Sterling as he was no longer associated with the operation after mid-2000.
Jeffrey Sterling could not testify in the trial on his own behalf because he would have had to discuss the issue of the value of Operation Merlin, which is still classified, meaning he could not reveal any details about it even if they were already known through the Risen book. So he was convicted on the basis of a series of calls and emails that made him suspicious and, in the minds of the jury, guilty.
Because only witnesses who praised Merlin were allowed to be called, the government by any reasonable standard failed to prove that, in Holder’s words, Sterling had compromised an operation that was in fact “in defense of America’s national security.” Still less did the prosecution demonstrate that he had “placed lives at risk.” If there was a victory in the case it was on the side of the Obama White House, which has exceeded all previous administrations combined in terms of going after alleged leakers. Prior to Obama, there had been only three prosecutions of current or former officials for disclosing classified information. Under Obama, there have been eight, which is particularly ironic as the administration has itself been prone to leak information. There has also been considerable pressure on journalists to reveal sources, as occurred with Risen. Associated Press phone records have been seized by prosecutors and a Fox News reporter was investigated relating to criminal charges connected to classified information.
Jeffrey Sterling will be sentenced in federal court in Alexandria on April 24th and is facing up to 80 years in prison.
Philip Giraldi, a former CIA officer, is executive director of the Council for the National Interest.