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Defense Asks Court to Sentence Former CIA Officer Jeffrey Sterling as Leaker, Not a Spy or Communist

Jeffrey Sterling (Photo from the Institute for Public Accuracy)

The defense for former CIA officer Jeffrey Sterling, who was convicted of violations of the Espionage Act and other offenses, has asked a court in Alexandria, Virginia, to “see” Sterling “not as a spy or a communist who committed espionage” but as someone who leaked information to a reporter.

Sterling’s defense requests that he be treated similarly to other leakers, who have been prosecuted like Stephen Kim, John Kiriakou and, most recently, David Petraeus. How the government has exaggerated the harm done by the leak he was convicted of committing is rebutted by a twenty-year CIA veteran as well.

The government convinced a jury, with largely circumstantial evidence, that Sterling leaked information about a top secret CIA operation in Iran called “Operation Merlin” to New York Times reporter James Risen, who published details on the operation in a chapter of his book, State of War. “Operation Merlin” involved the passage of flawed nuclear blueprints to Iran in order to get them to work on building a nuclear weapon that would never function.

Sterling, an African American, was a case officer assigned to “Operation Merlin.” He left the CIA in 2002 and brought a claim against the CIA alleging racial discrimination. He appealed his case all the way to the Supreme Court in 2005. However, the government successfully had the case thrown out by invoking the “state secrets” privilege.

The government has maintained that Sterling leaked as revenge for what happened with his lawsuit, and believe a sentence of 19.5 years to 24 years in prison would be reasonable.

Edward B. MacMahon Jr., Sterling’s defense attorney, argues in the sentencing memorandum submitted on April 24 [PDF], “The court cannot turn a blind eye to the positions the government has taken in similar cases.”

The government agreed to sentence Petraeus to two years of probation and a fine of $40,000 (which the judge hearing the case increased to $100,000). It was lenient considering the fact that Petraeus leaked “Black Books” containing the names of covert officers, war strategy notes, discussions from high level National Security Council meetings and notes from his meetings with President Barack Obama. He also lied to the FBI but was not charged with perjury or obstruction of justice. And the government allowed him to plead guilty to a misdemeanor violation instead of a violation of the Espionage Act.

“Sterling should not receive a different form of justice than General Petraeus,” MacMahon declares.

MacMahon notes that Kim, a former State Department employee, pled guilty to violating the Espionage Act when he disclosed information about North Korea and its nuclear weapons program to a reporter. He was accused of lying to the FBI about contacting a reporter. He received 13 months in jail and a year of probation.

Kiriakou, a former CIA officer, pled guilty to disclosing the name of a covert agent to the press in violation of the Intelligence Identities Protection Act. He had been indicted for allegedly violating the Espionage Act but the government dropped those charges. The government accused him of lying to the FBI too. However, the government agreed to sentence him to thirty months and three years of probation.

The government does not claim Sterling was “a mercenary or spy who sold information to a foreign intelligence service – such as Robert Hansen, Aldrich Ames, Jonathan Pollard and others – or a politically motivated agent seeking to disclose details of the CIA torture program – such as John Kiriakou,” MacMahon states. “Sterling did not profit, financially or politically, from the acts for which he has been convicted nor could he have done so. For these reasons, this case, though very serious, bears little resemblance to the panoply of Espionage Act cases that have preceded it. It is therefore distinguishable in a manner that militates in favor of a substantially more lenient sentence in this case.”

MacMahon outlines the history of the Espionage Act and how it was intended to help the government fight communists. Sterling is not a communist.

A twenty-year CIA veteran, who served as a senior officer directing operations in Prague, Czechoslovakia and in Amman, Jordan and “was at one time responsible for sensitive human intelligence and technical collection operations aimed at the Soviet nuclear weapons program, including their facilities at Arzamas 16, the facility at which Merlin worked,” was designated by the government as a witness in the case. He wrote a letter to the court.

The CIA veteran accused the government of engaging in “overwrought hyperbole” when discussing the harm caused, instead of focusing on the facts of what happened after the leak.

From the sentencing memo submitted:

…He notes that it is a matter of public record that in 1992, after the fall of the Soviet Union, the “Los Alamos National Laboratories and Arzamas 16 [began] to collaborate closely” and that both sides recognized that this meant that the United States would obtain previously undisclosed information about Arzamas 16. Thus, while he does not “doubt that Merlin provided useful information to the United States, it seems unlikely that this information was as singularly vital as the government suggests in its sentencing memorandum.” Further, he finds the suggestion that the Merlins’ lives were somehow placed at risk lacking in any factual basis: “The Russians are not going to harm an émigré scientist, one of many such scientists who relocated to the U.S., who
worked at a facility that has been open to us since the 1992.”

Finally, the CIA veteran says that it is “not credible to suggest [as the government does] that the public disclosure of a human asset ‘severely undermines’ our ability to recruit other foreign assets.” He notes that even the highly damaging disclosures of Aldrich Ames and his exposure did not preclude the United States from recruiting assets, including Merlin himself. Indeed, while disclosures of classified information “are never helpful, they happen all the time (and sometimes the United States quietly endorses the disclosure – read some of Bob Woodward’s books, or look at Agency collaboration on the film about the Bin Laden raid).” Yet, the United States (and other countries) continue to recruit agents and continue to engage in deception, as nations have since the time of the Trojan War… [emphasis added]

There are multiple hyperbolic claims in the government’s sentencing memo about how the leaks aided Iran and “great harm” was done because of disclosures in Risen’s book.

MacMahon maintains, “The reality is that the United States is now in the midst of negotiations with the Iranians about the issue of the Iranian nuclear weapons program. No evidence was presented that the disclosures alleged in this case aided the Iranians in any way.”

For whistleblower advocates, there is a huge concern that Petraeus’ sentence and the government’s proposed sentence for Sterling shows the government is not really concerned with punishing leaks but rather punishing whistleblowing.

Jesselyn Radack, the director of National Security & Human Rights at the Government Accountability Project (GAP), recently suggested, “The fact that Petraeus is the recipient of a such a comparatively light sentence is of particular significance considering that three most recent directors of the CIA — Leon E. Panetta, Petraeus and John O. Brennan — have all leaked classified information casually, regularly and with impunity.”

“The leak prosecution double standard makes clear that the Obama administration’s record breaking number of Espionage Act prosecutions has nothing to do with protecting classified information and everything to do with punishing and silencing whistleblowers.”

Finally, MacMahon insists Sterling has already paid a high price for what he did. Since his arrest in 2011, Sterling “has been unemployed. Though he has tried repeatedly to gain employment, no employer wanted to hire anyone charged with espionage.” He has been unemployed for five years. He has spent all his savings trying to keep his house. He no longer feels like he can support his wife, who has stood by him.

“There is no reason to impose a lengthy prison sentence in this case in order to reflect the seriousness of the offenses, to promote justice, or to provide just punishment,” according to MacMahon. More importantly, there is no risk that he’ll be a repeat offender. He will never have access to classified information in his life again.

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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."

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