CIA whistleblower Jeffrey Sterling was notified at the end of last week that he will serve his prison sentence of three and a half years at Federal Correctional Institution Englewood, a medium-security facility in Littleton, Colorado, that is around 900 miles away from where his wife and family live in St. Louis. That is at least a 12-hour drive.
Sterling was convicted of committing Espionage Act violations and other offenses after the government convinced a jury, through largely circumstantial evidence, that he had leaked information on a top secret CIA operation to New York Times reporter James Risen. He begins his sentence on June 16.
“I am certainly devastated beyond belief that I won’t be near my wife and family,” Sterling stated. “My wife, family, and friends have been an important support system for me and being so far away is like a wedge being driven between me and those who continue to love, support, and believe in me.”
“The government likes to isolate whistleblowers from their natural allies, and now the Bureau of Prisons is trying to isolate them from their families,” declared Jesselyn Radack, the director of the Government Accountability Project’s National Security and Human Rights Division. “Once again, the Bureau of Prisons proves that ‘rehabilitation’ is not their priority or else they’d place prisoners near their families.”
Sterling and his wife, Holly, are already economically devastated from the prosecution. Now, Holly will have to spend hundreds of dollars on air travel each time she wants to see him, a factor that may greatly limit how frequently she visits her husband in prison.
The Bureau of Prisons (BOP) has a very weak policy when it comes to keeping inmates close to their “release residence” or homes. It “attempts to designate inmates to facilities commensurate with their security and program needs within a 500-mile radius of their release residence.”
“If an inmate is placed at an institution that is more than 500 miles from his/her release residence, generally, it is due to specific security, programming, or population concerns.” However, there are next to no mechanisms for an inmate to hold BOP accountable for improperly designating or placing them in an inappropriate facility.
There are no low security facilities close to St. Louis, but there are four low security facilities, which are closer to St. Louis than FCI Englewood:
FCI Ashland – Ashland, Kentucky – 6 hr 35 min – 453 miles
FCI Waseca – Waseca, Minnesota – 7 hr 36 min – 500 miles
FCI Sandstone – Sandstone, Minnesota – 9 hr 34 min – 618 miles
Any of those facilities are closer to his family than FCI Englewood, and three of them arguably would fall within BOP’s 500-mile policy.
How does Sterling’s incarceration compare to previous cases of people prosecuted for leaks?
Stephen Kim, a former State Department employee who pled guilty to violating the Espionage Act, was incarcerated at a minimum-security camp in Cumberland, Maryland. Unlike the adjacent medium security facility, the camp has no concertina wire surrounding it. He was released from prison on May 12 after serving a 10-month sentence.
CIA whistleblower John Kiriakou was prosecuted for allegedly violating the Espionage Act. He pled guilty to violating the Intelligence Identities Protection Act (IIPA) and was sentenced to 30 months in prison. He served his sentence at a low security facility in Loretto, Pennsylvania, which was about 3 hours from his home.
During Kiriakou’s formal sentencing, the judge, prosecutors and Kiriakou’s attorneys agreed that he should be placed in Loretto’s minimum security camp. However, when he was processed, a corrections officer notified Kiriakou that BOP had deemed him a “threat to the public safety” and so his entire sentence would be served in the low security facility, not the camp.
Kiriakou discovered he was assigned a “public safety factor” designation when he was sentenced. According to the Bureau of Prisons, “There are certain demonstrated behaviors, which require increased security measures to ensure the protection of society. There are nine Public Safety Factors (PSFs) which are applied to inmates who are not appropriate for placement at an institution which would permit inmate access to the community [and allow them to be placed in a minimum security camp].”
The warden informed Kiriakou, “Prior to an inmate’s placement in the correctional facility, the DSCC conducts a thorough review of their record. The “Greatest Severity” Public Safety Factor was placed on inmate Kiriakou by the [Designation and Sentence Computation Center]. According to Program Statement 5100.08, Security Designation and Custody Classification Manual, crimes involving espionage, treason, sabotage or other related offenses fall within the greatest severity scale.” [*Here is a 2013 version of this manual: PDF.]
Kiriakaou used the “administrative remedy” process to challenge his designation but was unable to convince BOP that the agency was wrong.
“My crime should not fall under ‘Greatest Severity’ because it is not in any way related to ‘espionage, treason, sabotage or other related offenses.’ Although I was charged with espionage, all of those charges were dropped for the simple reason that I had not committed espionage,” Kiriakou wrote in multiple complaints to officials in FCI Loretto’s chain of command. (Note: IIPA is not even in the same part of the US code as espionage offenses.)
More than likely, Sterling has been given a similar “public safety factor” designation, even though he did not commit treason or spy on behalf of a foreign power. This prevents him from being placed in a minimum security camp like Kim.
Why was Kim incarcerated in a minimum security camp when he violated the Espionage Act and, by the BOP’s standards, committed an “espionage-related” offense that could have prohibited him from placement in a minimum security camp?
A key difference between Kim’s case and the cases of Kiriakou and Sterling is the fact that Kiriakou and Sterling both turned to the public to build support for them during their prosecution.
Kiriakou learned through a Freedom of Information Act request that he had been placed under Central Inmate Monitoring after he sent his first “Letter from Loretto.”
Central Inmate Monitoring by BOP is for prisoners who “present special needs for management.” A copy of the 2007 policy indicates inmates are given this designation “so that critical decisions about their cases are carefully reviewed.” It is supposed to make the “institution environment” more “safe” by “case management decisions based on accurate information and sound correctional judgment.” Yet, BOP applied this designation because of Kiriakou’s ability to have letters published by Firedoglake and because the letters would likely garner widespread media coverage.
One of the documents he obtained cautioned, ‘PUBLICITY—Inmate has broad access to the press. Attached are articles in which inmate has been mentioned.’” BOP wanted to monitor Kiriakou’s speech so they could control him.
Potentially, BOP has learned a few lessons after incarcerating Kiriakou. The BOP is putting Sterling in a facility in Colorado because the fact that he is so far away from family will help the prison control him. It may further discourage Sterling from speaking out while he is in prison through letters or interviews with reporters, even though BOP does not generally prohibit inmates from communicating with press.
Kiriakou had support when he was in prison and conducted interviews with media, but he did not have a group like Roots Action prior to his incarceration, which could quickly galvanize support through its network of activists.
Any retaliation experienced will be difficult for Sterling to challenge. The “administrative remedy” process is a toothless mechanism for inmates. There really is no accountability for BOP officials who inappropriately designate inmates for prisons far away from their families.
Sterling left the CIA in 2002 and brought a claim against the agency 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.
If Sterling is not a whistleblower because he revealed information to Risen, then he is a whistleblower because he stood up to the CIA over workplace discrimination and was effectively silenced.
Radack contended this is “further whistleblower retaliation” after Sterling’s conviction. “The government’s wrath knows no bounds,” Radack declared.
She added, “Given that the judge agreed with the defense’s request that Jeffrey be housed in Missouri near his wife and family, I’d be interested to find out how many conversations the Bureau of Prisons had with the Department of Justice.”
The Bureau of Prisons was contacted for comment but did not respond to an email to Public Affairs requesting clarification on the general policy for placing individuals in prisons more than 500 miles away from their families.
Image is screen shot from Expose Facts’ documentary on Sterling, “The Invisible Man: CIA Whistleblower Jeffrey Sterling”