The sacrificial tragedy that tends to accompany the whistleblower-journalist relationship is that one of the parties is bound to end up in the nick. Most of the time the journalist is sparred, though states have insisted on criminalising the entire relationship as noxious to national interests. The severing of the information line between enterprising journalist and the disclosing agent remains the modus operandi of the security establishment.
Jeffrey Sterling was sentenced on Monday to 42 months for revealing classified information to a New York Times reporter, James Risen. Risen subsequently used the material in his 2006 publication, State of War. It involved details of a classified operation dealing with the disruption of Iran’s nuclear program, one which Risen subsequently revealed may have actually aided Teheran. It entailed the passing of flawed nuclear blueprints to Iran via a Russian intermediary code named Merlin. To Risen’s credit, he refused to divulge his sources.
The prosecution counts were standard: the unauthorised disclosure of national defence information, unlawful retention of national defence information, unauthorised conveyance of government property and obstruction of justice.
The sentencing aspect initially seemed problematic, largely because those accused of leaking secrets under the Espionage Act tend to receive stiffer calculations. (How dare they even challenge the state’s sober assessment of their unpatriotic actions?) Then comes that usual problem: many of those convicted under that hideous war time relic tend to be disclosers of classified material in a traditional whistleblowing sense, rather than espionage agents per se.
The prosecution wanted the judge to come down hard on Sterling with the usual harsh sentencing program- between 19 to 24 years. They found a vindictive African-American, one who had sued the agency in vain for racial discrimination, and felt he was being mistreated by the agency.
But the accumulating precedents suggested otherwise. There was the case of John Kiriakou, sentenced to 30 months for disclosing the name of a CIA agent involved in the waterboarding program; and Stephen Kim, who received 13 months for disclosing a classified document to a Fox News reporter.
The defence counsel’s memorandum in aid of sentencing insisted on the effluxion of time as a factor. “This sentencing is set to occur almost four and a half years since this case was initially indicted and, in some respects, ten to fifteen years since the events at issue transpired. It has been over fifteen years since Mr. Sterling left employment at the CIA and over ten years since Mr. Risen’s book State of War was published.”
The lawyers also pointed out that “while the Government has successfully charge ‘leakers’ under the Espionage Act, its legislative history would not support such charges.” When it was amended in 1950 under its previous name of the Internal Security Act, other terrors and enemies were envisaged: “a world Communist movement which, in its origins, its development and its present practice, is a world-wide revolutionary movement whose purpose is by treachery, deceit…espionage, sabotage, terrorism and any other means necessary, to establish a Communist totalitarian dictatorship in the countries, throughout the world through the medium of a world-wide communist organization.”
Manoeuvred into this curious position, the defence argued that Sterling was neither a communist or a spy, nor any exotic variegation of the two. “He should be treated similarly to others convicted for the same crimes and not singled out for a long prison sentence because he elected his right to a trial.” Other points are also cited, including personal accounts in support of Sterling’s character, a “gentleman of integrity and honesty,” “a lover of all things American”.
Men of faith will be hauled over the coals for overlooking the regulations. Even those lauded in the highest positions of office can fall foul of them. General David Petraeus was one such figure, having disclosed classified material to his then mistress engaged in the task of writing a book about his exploits.
In some ways, his bed room indiscretions were more serious. Rather than revealing the inherent myopia in some intelligence operations, Petraeus went the whole hog, disclosing “the identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high level National Security Council meetings”. Furthermore, the general admitted lying to the FBI about his actions. His mild sentence was one of probation, showing that state institutions can prove meek at various turns.
The Sterling sentence reveals, yet again, the position taken by the Obama administration towards those who “leak” establishment blunders. Vigorous prosecutions have been mounted under the Espionage Act, and the casualty list grows. Attorney General Eric H. Holder’s response to Sterling’s conviction was inventive, suggesting that “it is possible to fully prosecute authorized disclosures that inflict harm upon our national security without interfering with journalists’ ability to do their job.”
In actual fact, it is precisely the nature of that relationship that is being targeted. As Norman Solomon has stated with some force, “We’ve got to support investigative journalists and whistleblowers. We can’t allow the government to drive a wedge between the two.”
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: firstname.lastname@example.org