CIA Whistleblower Jeffrey Sterling’s “Trial by Metadata”: Does It Set a Dangerous Precedent for Free Speech Rights in the United States?

Jeffrey Sterling

Jeffrey Sterling

By Elaine Magliaro

Last week, I posted a column about Jeffrey Sterling, the former CIA officer who was convicted in late January of violating the Espionage Act. Earlier this week, the BBC called the jury’s verdict “guilt by metadata.”


When a Washington, DC, area jury convicted Jeffrey Sterling of multiple counts of espionage, the smoking gun wasn’t a key bit of classified information found in the former CIA officer’s possession; it was a trail of phone calls and emails of unknown content.

The information about where those calls and emails went, however – to a New York Times journalist – was enough to convince a jury to send Sterling to prison for up to 80 years.

Norman Solomon–who covered Sterling’s 7-day trial–spoke with Democracy Now! on Thursday. Solomon said he thought Sterling’s case was an extremely important one–and that it had been seriously underreported by the news media.


An extremely important case, very underreported by the news media, a tremendous selective prosecution against one of the only African-American case officers in the CIA, somebody who went through channels as a whistleblower to the Senate Intelligence Committee to report in 2003 about a dumb and dangerous CIA operation aimed at Iran with nuclear design component information back in 2000. So, Sterling went on trial last month in federal court for revealing to the Senate Intelligence Committee something that the Senate Intelligence Committee needed to know, but the actual charges were, as you mentioned, that he leaked the classified info to James Risen. Being in the courtroom day after day for the seven-day trial, very disturbing, not only the selective prosecution, but also the fact no African Americans on the jury, 23 CIA officials testifying, and a tremendous amount of innuendo against the defendant in that case.

So, I really urge people to look into it more closely, because Jeffrey Sterling deserves support. All of the evidence presented by the prosecution was circumstantial. It was metadata, email and phone call metadata, without content of any incriminating nature. So the bottom line is, Jeffrey Sterling is facing a nine-count sentencing of federal felonies, up to 80 years in prison, on the basis of circumstantial evidence that is metadata.

The BBC noted that there were free speech advocates who covered Sterling’s case who warned “that while Risen has become a cause celebre among journalists, Sterling’s prosecution and conviction – which received much less coverage – could have a chilling effect on the willingness of government whistleblowers to share what they know.” The advocates claim that the CIA “sought to punish Sterling in part because he had told a Senate Intelligence Committee about his concerns with Merlin in 2003. Senate staffers, Sterling’s defence attorneys insisted, could have just as easily been the source of Risen’s reporting.”

Marcy Wheeler, an investigative reporter who covered Sterling’s trial, said that the US government had constructed a case “based purely on circumstantial evidence.” She added that the case had “set a dangerous precedent for free speech rights in the US.”

According to Wheeler, the conviction of Jeffrey Sterling “means the government can convict leakers without proving they revealed actual classified information.” Wheeler contended that the government “only need to show that a leak allowed a journalist to unearth national security secrets at some later date.” She said, “Sterling was convicted for the most part entirely on phone and email records with no content attached. There was no guarantee that it had to do with classified information.”


Vague hints and insinuations are part and parcel of the Washington trade in information, Wheeler says, as reporters with stories to write and government officials with agendas to drive engage in a symbiotic relationship in the corridors of power.

The BBC reported that Wheeler said that the “Justice Department had received ‘de facto approval’ to expand the reach of the Espionage Act – a World War 1 era law meant to target spies who help foreign governments – to include non-secret tips to reporters.”


Do you think Sterling’s case sets a dangerous precedent for free speech in this country?


Was Jeffrey Sterling Trial a Gov’t Effort to Divide Investigative Journalists & Whistleblowers? (Democracy Now!)

Jeffrey Sterling’s trial by metadata: Free speech stories (BBC)

What You Should Know about “Operation Merlin,” Jeffrey Sterling, the CIA, the Obama Administration and Whistleblowers (Flowers for Socrates)

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11 Responses to CIA Whistleblower Jeffrey Sterling’s “Trial by Metadata”: Does It Set a Dangerous Precedent for Free Speech Rights in the United States?

  1. blouise says:

    The CIA needed a scapegoat and their former Director, General David Petraeus, was too big to fail so they went after Sterling. Free speech? That’s a conceptual ideal for the classroom, meant to be discussed, not actually practiced.

  2. Elaine M. says:


    I think this is a really important story. Yet, it has received little attention. It’s sad that the bad guys get away with murder while the whistle-blowers go to jail.

  3. Elaine M. says:

    The Invisible Man: Jeffrey Sterling, CIA Whistleblower
    By Norman Solomon

    The mass media have suddenly discovered Jeffrey Sterling — after his conviction Monday afternoon as a CIA whistleblower.

    Sterling’s indictment four years ago received fleeting news coverage that recited the government’s charges. From the outset, the Justice Department portrayed him as bitter and vengeful — with the classic trash-the-whistleblower word “disgruntled” thrown in — all of which the mainline media dutifully recounted without any other perspective.

    Year after year, Sterling’s case dragged through appellate courts, tangled up with the honorable refusal of journalist James Risen to in any way identify sources for his 2006 book State of War. While news stories or pundits occasionally turned their lens on Risen, they scarcely mentioned Sterling, whose life had been turned upside down — fired by the CIA early in the Bush administration after filing a racial discrimination lawsuit, and much later by the 10-count indictment that included seven counts under the Espionage Act.

    Sterling was one of the very few African American case officers in the CIA. He became a whistleblower by virtue of going through channels to the Senate Intelligence Committee in 2003 to inform staffers about the CIA’s ill-conceived, poorly executed and dangerous Operation Merlin, which had given a flawed design for a nuclear weapons component to Iran back in 2000.

    Long story short, by the start of 2011, Sterling was up against the legal wall. While press-freedom groups and some others gradually rallied around Risen’s right to source confidentiality, Sterling remained the Invisible Man…

    The principle of supporting whistleblowers as strongly as journalists is crucial. Yet support for the principle is hit-and-miss among individuals and organizations that should be clear and forthright. This need is especially great when the government is invoking “national security” claims.

    As the whistleblower advocate Jesselyn Radack of the Government Accountability Project has said: “When journalists become targets, they have a community and a lobby of powerful advocates to go to for support. Whistleblowers are in the wilderness. … They’re indicted under the most serious charge you can level against an American: being an enemy of the state.”

  4. Elaine M. says:

    Convicting Sterling to Chill Whistleblowing
    February 4, 2015

    The leak trial of CIA officer Jeffrey Sterling never got near a smoking gun, but the entire circumstantial case was a smokescreen. Prosecutors were hell-bent on torching the defendant to vindicate Operation Merlin, nine years after a book by James Risen reported that it “may have been one of the most reckless operations in the modern history of the CIA.”

    That bestselling book, State of War, seemed to leave an indelible stain on Operation Merlin while soiling the CIA’s image as a reasonably competent outfit. The prosecution of Sterling was a cleansing service for the Central Intelligence Agency, which joined with the Justice Department to depict the author and the whistleblower as scurrilous mud-throwers.

    In the courtroom, where journalist Risen was beyond the reach of the law, the CIA’s long-smoldering rage vented at the defendant. Sterling had gone through channels in 2003 to warn Senate Intelligence Committee staffers about Operation Merlin, and he was later indicted for allegedly giving Risen classified information about it. For CIA officials, the prosecution wasn’t only to punish Sterling and frighten potential whistleblowers; it was also about payback, rewriting history and assisting with a PR comeback for the operation as well as the agency.

    Last week, the jury — drawn from an area of Northern Virginia that is home to CIA headquarters, the Pentagon and a large number of contractors for the military-industrial-intelligence complex — came back with guilty verdicts on all counts. The jurors had heard from a succession of CIA witnesses as well as former Secretary of State Condoleezza Rice, extolling Operation Merlin and deploring any effort to lift its veil of secrecy.

    During the first half of the government’s six days of testimony, the prosecution seemed to be defending Operation Merlin more than prosecuting Jeffrey Sterling.

    Prosecutors defamed Sterling’s character in opening and closing arguments, but few CIA witnesses had anything bad to say about him. The notable exception, CIA official David Cohen — who ran the agency’s New York office when Sterling worked there — testified that “his performance was extremely sub-par.”

  5. Mike Spindell says:

    All bureaucracy’s are rather crude affairs, where the mission becomes lost in the petty striving of people to climb the hierarchy and diminish rivals. The lower one is on the food chain, the more likely they are to bear the brunt when things go wrong. For the most part those who reach the upper echelons are ruthless in their quest for and for holding onto power. Sterling is a patsy, punished to protect the fact that through the years the CIA has wracked up an impressive history of incompetence and disaster. Perhaps the most galling aspect is the smug, self-righteousness displayed by the agency as they cover up their mis-deeds.

  6. Elaine M. says:


    Justice demands equal treatment: Opposing view
    by Jesselyn Radack

    There is no reason Gen. Petraeus should receive special treatment when in all other cases the government has steadfastly (and successfully) resisted any requirement that it show harm to the U.S. for an Espionage Act charge.

    In the case against CIA whistle-blower John Kiriakou, the government won a court ruling that whether Kiriakou intended to sell secrets for profit, or disclose unlawful government conduct, is irrelevant.

    Even while arguing harm to the U.S. is legally irrelevant, in all Espionage Act cases against whistle-blowers, dating back to Pentagon Papers hero Daniel Ellsberg, the government has exaggerated and even manufactured claims of grave harm.

    In the collapsed case against NSA whistle-blower Thomas Drake, the government claimed Drake harmed “soldiers on the field.” In the case against Army whistle-blower Chelsea Manning, the government bellowed about harm to national security but could not produce a damage assessment.

    The Espionage Act has been wielded only against lower-level officials who have exposed government ineptitude, incompetence or illegality, while senior officials who leak classified information on a daily basis get a pass, promotions and book deals.

    The bipartisan crowd of Washington insiders calling for leniency for Petraeus is the same group calling for the harshest possible punishment for Edward Snowden, a whistle-blower whose revelations clearly served the public interest. No such claim can be made about Petraeus’ alleged leaks to his biographer.

    Whether or not the Espionage Act is the wisest law to use in these cases (I would say it is not), it is the government’s weapon of choice, and justice demands equal treatment under the law.

    • Mike Spindell says:


      Your comment about the fact that Petraeus is being treated more generously than others reinforces my generalization about bureaucracy. The most blame and punishment always falls on those from the lower echelons. By all right Petraeus should be locked away in a federal prison, awaiting a summary trial and conviction. He was, however, to high up in the hierarchy to expect anything other than a slap on the wrist and a comfortable rest of his life.

  7. Elaine M. says:

    The Revenge of the CIA: Scapegoating Whistleblower Jeffrey Sterling

    Hearing the testimony from CIA operatives, it’s clear that the agency is extremely eager to make an example of Sterling. Despite all the legalisms, the overarching reality is that the case against Sterling is scarcely legal — it is cravenly political.

    If it were otherwise, the last two CIA directors to leave their posts — General David Petraeus and Leon Panetta — would be going through the same kind of ordeal that Sterling has been enduring. There’s hefty evidence that both Petraeus and Panetta leaked classified information while running the agency. But these days they’re busy getting rich, not in danger of imprisonment for the rest of their lives.

    On Wednesday, the jury heard vague and emphatic claims that Sterling jeopardized the safety of a “human asset” and his family by revealing information about a CIA operation. But the first page of Chapter Nine in State of War reveals a self-inflicted CIA catastrophe in Iran that Sterling had nothing to do with.

    Sterling no longer worked for the CIA when the disaster occurred in 2004. An officer at the agency’s Langley headquarters made the mistake of sending data to an agent that “could be used to identify virtually every spy the CIA had inside Iran,” Risen reported. And the recipient of the data was actually a double agent. Risen wrote: “The agent quickly turned the data over to Iranian security officials, and it enabled them to ‘roll up’ the CIA’s agent network throughout Iran.”

    That information hardly fits with the agency’s profuse efforts to scapegoat Jeffrey Sterling for its operational woes in Iran. There was no public accountability for the huge screw-up that led to the rollup of agents inside Iran. Vastly more important, there was no public accountability for top CIA officials who cravenly helped to lie the United States into invading Iraq a dozen years ago with the pretext of (nonexistent) Iraqi WMD.

    In sharp contrast, it has been quite convenient for the CIA to try to crush whistleblower Jeffrey Sterling, who — whether or not he was a source for Risen’s State of War book — by all accounts went through channels to let the Senate Intelligence Committee know about Operation Merlin, the reckless CIA maneuver that gave nuclear weapon blueprints to Iran in 2000.

  8. Elaine M. says:

    Guilty Verdict for CIA Agent Called ‘New Low’ in War on Whistleblowers
    As case grounded ‘largely on circumstantial evidence’ results in guilty verdict, advocates for Jeffrey Sterling say government has gone too far

    While U.S. Attorney General Eric Holder called Sterling’s conviction the “just and appropriate outcome,” critics of the government’s case pilloried the entire ordeal. Sterling was allowed to return home until sentencing in the case is rendered on April 24.

    Sterling’s attorney, Edward B. MacMahon Jr., said he would seek to get the verdict thrown out and, failing that, file an appeal.

    “We’re obviously very saddened by the jury’s verdict,” MacMahon told the Times in in a telephone interview. “We continue to believe in Jeffrey’s innocence, and we’re going to continue to fight for him up to the highest levels.”

    According to the Times:

    Liberal advocacy groups have hailed Mr. Sterling as a whistle-blower for taking his concerns about the program to the Senate Intelligence Committee in early 2003, a time when dissenting voices in the C.I.A. were hushed as the country prepared for war in Iraq. The Justice Department and C.I.A., however, deny that characterization. They said that the Iran operation had not been mismanaged and that Mr. Sterling had gone to Congress and then the news media as a way to settle personal grievances.

    Asked for her reaction to the Sterling’s conviction by FireDogLake’s Kevin Gosztola, Jesselyn Radack, a Justice Department whistleblower, attorney and director of the Government Accountability Project’s National Security and Human Rights Division, said the prosecution and conviction of Sterling represents “a new low in the war in whistleblowers and government hypocrisy.”

    Sterling, Radack continued, “was convicted in a purely circumstantial case of ‘leaking.’ It shows how far an embarrassed government will go to punish those who dare to commit the truth.”…

    Norman Solomon, Wheeler’s colleague at and who has also covered the trial closely, explained to Common Dreams in an email how one of the most striking things about the media coverage of the Sterling case was just how little of it there was.

    “One of the most powerful forms of propaganda from corporate media is silence, and that has been a major dynamic in the sparse coverage of Jeffrey Sterling,” Solomon said. “Few media outlets have gone beyond handouts and rhetoric from the government.”

    In his latest dispatch about the trial, published Tuesday, Solomon referred to Sterling as an “Invisible Man”—invoking the famous book by Ralph Ellison—as he lamented the scant attention his case has received. “While press-freedom groups and some others gradually rallied around Risen’s right to source confidentiality,” Solomon wrote, “Sterling remained the Invisible Man.”

  9. Pingback: Unequal Justice in America?: General Petraeus Gets a Slap on the Wrist for Leaking Classified Information…While Former CIA Officer Jeffrey Sterling Gets 42 Months in Prison (VIDEO) | Flowers For Socrates

  10. Pingback: Norman Solomon Writes about Jeffrey Sterling and the CIA: “An Untold Story of Race and Retribution” | Flowers For Socrates

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