January 29, 2015

With Jeffrey Sterling Conviction, The Great Whistleblower/Leaker Divide Endures

StopBy Gordon Schnell

There has been no slowdown in the government’s crackdown on intelligence whistleblowers. This despite the storm of support for NSA whistleblower Edward Snowden and his revelations on the spy agency’s largely renounced, and according to one federal court, “almost Orwellian,” secret phone tapping program. See The Redemption of Edward Snowden. After Monday’s jury conviction of former CIA officer Jeffrey Sterling, the government trumpeted the decision as a major triumph for national security and “vitally important to our efforts to secure critical intelligence on behalf of the American people. See DOJ Press Release. Clearly, the government was sending a strong message to future whistleblowers in the intelligence community — when you see something, do not say something.

Sterling worked at the CIA from 1993 to 2002. He was deeply involved in a clandestine operation to disrupt Iran’s nuclear program by using a former Russian scientist — with the codename “Merlin” — to provide Iran with intentionally flawed nuclear schematics. Sterling ultimately disagreed with the plan and how it was being managed, believing it could do significantly more harm than good. According to the government’s charges against him, Sterling took his concerns and a whole lot of classified information to New York Times reporter James Risen who put it all in his 2006 book, State of War. Risen described the secret mission as mismanaged and reckless and potentially furthering rather than tampering Iran’s nuclear program.

Proponents of Sterling have hailed him as a whistleblower who did what he had to do to protect the American people from what he saw as a secret intelligence operation gone bad. He even tried to go through the proper channels by raising his concerns to Congress in a 2003 meeting with the Senate Intelligence Committee. The government painted a very different picture; that Sterling was nothing but a disgruntled employee who leaked information because of what he perceived as racial discrimination on the job. The CIA fired Sterling in 2000 and he ultimately brought an unsuccessful racial discrimination claim against the agency.

According to the government, Sterling was no whistleblower. “He felt he’d been mistreated. He was angry. He was bitter. He was done keeping the CIA’s secrets. . . . He put his own selfishness and his own vindictiveness ahead of the American people. For what? He hated the CIA and wanted to settle the score.” Apparently, the jury at his trial agreed. They found him guilty of all the government’s charges even though most have acknowledged there was no direct proof he shared classified information with Risen. The government apparently persuaded them with an artfully stitched together and compelling string of circumstantial evidence that was enough to convince the jury Sterling crossed the great divide between whistleblower and leaker.

It is a divide this administration has taken pains to enforce, more than all other presidents combined. According to the New York Times, there had been only three prosecutions of government intelligence leaks under all previous presidents. Under President Obama alone, there have been eight. Most of those charged have pleaded guilty and avoided a trial. Of those, former CIA officer John Kiriakou is in federal prison as are two former government contractors, Donald Sachtleben and Stephen Kim. Former NSA official Thomas Drake pled out to a relatively minor charge. And then there is Snowden of course, holed up in Russia to avoid criminal charges back home. The only other trial was of army intelligence analyst Chelsea (formerly Bradley) Manning who was sentenced to 35 years in prison for providing a mountain of classified information to Wikileaks.

Thus a wide range of actors; a wide range of conduct; a wide range of motivations. But all connected by the government’s uniform response. When it comes to whistleblowers in the intelligence community, we do not want to hear from you. In heralding the big win over Sterling, outgoing Attorney General Eric Holder did not mince words in the government’s sense of purpose in going after Sterling and other so-called intelligence leakers like him: his “unauthorized disclosure of classified information compromised operations undertaken in defense of America’s national security. The disclosures placed lives at risk. And they constituted an egregious breach of the public trust by someone who had sworn to uphold it.”

Mr. Holder certainly has a point, particularly if as the jury found Sterling was acting more out of self interest than for the public good. But there needs to be a clear and safe path for members of the intelligence community to bring forward true concerns of our intelligence agencies behaving badly without fear of retaliation or reprisal. Otherwise, the press will remain their only realistic option. The government seems to have taken a step in the right direction with its passage last summer of some much needed legislation designed to protect these whistleblowers. See New Protections for Intelligence Whistleblowers: One Step Closer to Avoiding the Next Snowden? Whether it truly brings this suspect class within the protections afforded other government whistleblowers remains to be seen.

But with its tireless crusade against Sterling (not to mention its refusal to stand down on Snowden), the government has not backed off the clear distinction it draws between whistleblowers and leakers, sowing confusion as to what a legitimate intelligence whistleblower is to do. The government should use this latest chapter in its ongoing campaign against intelligence leaks to speak not only about what Sterling did wrong as a leaker, but also about what he should have done as a legitimate whistleblower. Only then will we have some much needed clarity on how best to draw the most effective balance between safeguarding our national security and providing real oversight and accountability to our intelligence agencies.

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