Jeffrey Sterling convicted; his accomplice remains free

Jeffrey Sterling, a former Central Intelligence Agency officer, was convicted of espionage today. He was charged with telling a journalist about a secret operation to disrupt Iran’s nuclear program. The journalist was James Risen of the New York Times.

Scott has written extensively about this case, focusing on Risen’s disclosure of Sterling’s secrets and the government’s unwillingness to require the journalist to testify in the case. Fortunately, Sterling was convicted without Risen’s testimony. But since this outcome wasn’t assured, the government should have forced Risen to testify or go to jail. For that matter, Risen should have been prosecuted. He was, after all, Sterling’s accomplice.

Eric Holder had this to say following the verdict:

This is a just and appropriate outcome. The defendant’s unauthorized disclosures 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.

As this verdict proves, it is possible to fully prosecute unauthorized disclosures that inflict harm upon our national security without interfering with journalists’ ability to do their jobs.

But Sterling’s disclosures would not have “compromised operations undertaken in defense of America’s national security” and would not have “placed lives at risk” if Risen hadn’t published them. Even the New York Times, Risen’s employer, declined to run Risen’s story; he used Sterling’s material in a book.

Unlike Sterling, Risen took no oath to uphold the public trust. But one can violate the law without having taken such an oath. As Scott says: “if Sterling violated the Espionage Act, it is even clearer that Risen did so too. He is subject to the same criminal liability as Sterling and other citizens for violation of the Espionage Act.”

Holder is correct that it is possible successfully to prosecute unauthorized disclosures that harm our national security without getting journalists to divulge their sources. But it’s also possible for such a prosecution to fail for want of the journalists’ testimony. That it didn’t happen in Sterling’s case doesn’t mean it can’t happen.

Nor was it a foregone conclusion that it wouldn’t happen in the Sterling case. If the offense is as serious as Holder says — and it is — why not use every avenue possible to force the accomplice to testify?

But a more basic question is, why shouldn’t the government “interfere with journalists’ ability to do their jobs” when, as here, doing the job means “inflict[ing] harm upon national security”? Stated differently, is it the legitimate job of journalists to harm U.S. national security in the manner that Risen did?

The New York Times didn’t view its journalistic mission as requiring it to jeopardize national security by running Risen’s story. Eric Holder seems to believe otherwise. Why?