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In Leak Prosecution, Attorneys Demand to Know if Government Has “Agreement” with Reporter James Risen

Attorney General Eric Holder at the Washington Ideas Forum

Attorneys for former CIA officer and whistleblower Jeffrey Sterling are demanding evidence of any “understandings” or “agreements” between the United States and James Risen, a New York Times reporter, for testimony in the case.

The demand comes after Attorney General Eric Holder made comments yesterday at the Washington Ideas Forum about whistleblowers and whether the administration would be willing to put a reporter in jail if they refused to comply with a subpoena and provide compelled testimony.

Holder addressed criticism, “People have to understand something. We have been in touch with Mr. Risen’s lawyers. We’ve talked about a variety of things. If what we’ve talked about remains true, I think there’ll be a resolution of that that will be satisfactory to everybody. But as I said, no one’s going to be going to jail. No reporter’s going to jail as long as I am Attorney General.”

“All of the information that the Attorney General discloses to political reporters is ‘news’ to the defense,” Sterling’s attorneys declare in a motion for discovery evidence [PDF]. “If the government has reached some agreement with Mr. Risen, who is a witness in the case against Mr. Sterling, that agreement is discoverable. If the United States has made offers to Mr. Risen and communicated those offers to Mr. Risen, the offers and letters making such offers are discoverable.

“To this date, the defense simply is being left in the dark in a manner that ignores the government’s obligation to provide exculpatory evidence,” the attorneys argue.

Sterling’s defense requests the disclosure of “any and all understandings or promises that may exist at this time between the United States and Mr. Risen regarding testimony in the case.” They suggest a hearing on November 20 could be scheduled to address the matter.

Risen’s attorney, Joel Kurtzberg, was “expressed puzzlement” after hearing Holder’s statement. He told POLITICO, “I’m not sure what the Attorney General is referring to. We have no agreement with the government about Mr. Risen’s testimony.”

After White House press secretary Joshua Earnest was asked about the Obama administration’s record against the press, he repeated what Holder has said, which is “that journalists should not face jail time for just doing their jobs.”

Those comments prompted Risen to state on C-SPAN moments later, “I don’t know what he’s talking about, frankly,” and, “All I know is that my case is ongoing and the trial starts in January. I don’t know what else the government has in mind at this point.”

Sterling’s story is not all that well-known. Much more is known about the government’s pursuit of Risen’s testimony than the prosecution against him.

The former CIA officer faces a trial on ten felony counts, seven of which are under the Espionage Act. In a feature story for The Nation, Marcy Wheeler and Norman Solomon described how Sterling came to be in the crosshairs of the government:

…[Now-CIA director John Brennan] played a role in his unhappy departure from the CIA a dozen years ago. In 2000, Sterling filed a discrimination complaint within the agency, asserting that he had been denied certain assignments because of his race. (Sterling was one of the CIA’s few African-American officers.) Brennan, as deputy executive director, was involved in rejecting Sterling’s claim. Sterling responded by suing the CIA; he was fired in 2002. The CIA rebuffed a number of settlement offers and then won dismissal of the entire lawsuit in 2004 after claiming that the litigation would expose state secrets.

In early March 2003, Sterling met with two Senate Intelligence Committee staffers to report that Operation Merlin—the CIA’s ill-conceived and bungled effort in 2000 to use a former Russian scientist to pass flawed nuclear-weapons blueprints to Iran—may have helped Iran’s nuclear ambitions. The government concedes that Sterling went through proper channels when he “disclosed classified information” to committee staff. (In court documents, the prosecution has complained that Sterling was unfairly critical of that operation when he spoke to committee staffers.)…

Risen published details on Operation Merlin in a chapter of his book, State of War, especially because the New York Times refused to publish his story on the CIA operation.

A leak investigation into Sterling was opened in 2003 and he was not indicted until 2010. According to Wheeler and Solomon, the Justice Department has justified this delay “by relying on a McCarthy-era extension of the statute of limitation associated with charges against him, and by holding Sterling responsible for the publication of Risen’s book chapter rather than for the conversations the two men allegedly had back in 2003.”

As noted by Wheeler and Solomon, the government contends Sterling provided information to Risen in a “false and misleading manner specifically as a means of inducing Risen to write about it, thus severely undercutting any First Amendment protection to be afforded that information.” However, former top CIA lawyer John Rizzo wrote in his memoir that the CIA’s chief of operations had confirmed “the details largely were all too distressingly accurate and damaging to CIA sources and methods.”

Despite the fact that Sterling may have engaged in classic acts of a whistleblower—and even appears to have tried to go through “proper channels” as government officials always recommend, Holder said during the Washington Ideas Forum, “The case is still one that has to be tried.”

It will proceed in the coming months, and, as it stands it, the trial could be the clearest manifestation yet of how the war on leaks is a war on whistleblowers and a war on journalists that undermines press freedom under the First Amendment.

CommunityThe Dissenter

In Leak Prosecution, Attorneys Demand to Know if Government Has ‘Agreement’ with Reporter James Risen

Attorney General Eric Holder at the Washington Ideas Forum

(update below)

Attorneys for former CIA officer and whistleblower Jeffrey Sterling are demanding evidence of any “understandings” or “agreements” between the United States and James Risen, a New York Times reporter, for testimony in the case.

The demand comes after Attorney General Eric Holder made comments yesterday at the Washington Ideas Forum about whistleblowers and whether the administration would be willing to put a reporter in jail if they refused to comply with a subpoena and provide compelled testimony.

Holder addressed criticism, “People have to understand something. We have been in touch with Mr. Risen’s lawyers. We’ve talked about a variety of things. If what we’ve talked about remains true, I think there’ll be a resolution of that that will be satisfactory to everybody. But as I said, no one’s going to be going to jail. No reporter’s going to jail as long as I am Attorney General.”

“All of the information that the Attorney General discloses to political reporters is ‘news’ to the defense,” Sterling’s attorneys declare in a motion for discovery evidence [PDF]. “If the government has reached some agreement with Mr. Risen, who is a witness in the case against Mr. Sterling, that agreement is discoverable. If the United States has made offers to Mr. Risen and communicated those offers to Mr. Risen, the offers and letters making such offers are discoverable.

“To this date, the defense simply is being left in the dark in a manner that ignores the government’s obligation to provide exculpatory evidence,” the attorneys argue. (more…)

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."