CIA Whistleblower Sentenced to 42 Months Based on Metadata

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Yves here. I’m featuring , which may seem to be harrow for our non-financial coverage, for two reasons. First, the interview is with Marcy Wheeler. I suspect many readers know and admire her work but have not seen her speak. Second, her talk flags a particularly disturbing element of the government’s successful case against CIA whistleblower Jeffrey Sterling, namely, that it was weak and depended almost entirely on circumstantial metadata evidence. That should give consumers pause about their casual attitude towards the government’s data hoovering: “Oh, there’s nothing they can see that is of interest.” As this story indicates, the officialdom was able to use inconclusive information as the basis of a narrative that worked in court.

If you think this will never happen to you, think twice. Consider the story about a Chinese employee of the National Weather Service who had her life turned upside down, and porbably ruined. She was arrested, accused of being a Chinese spy, and had her case suddenly dropped a week before it was scheduled to go to trial. Merely knowing or meeting with the wrong people can get you caught in the surveillance state dragnet.

JESSICA DESVARIEUX, PRODUCER, TRNN: Welcome to The Real News Network. I’m Jessica Desvarieux in Baltimore.

On Monday, former CIA officer Jeffrey Sterling was sentence to three and a half years in prison. Sterling, if you remember, was convicted of espionage back in January on charges that he leaked information to New York Times journalist James Risen. That information revealed a CIA operation to provide flawed nuclear plans to Iran. The Obama administration used the Espionage Act to go after Sterling. This administration has used the Espionage Act to go after more whistleblowers than all previous administrations combined.

With us to discuss Sterling’s sentence is investigative reporter Marcy Wheeler. She’s the author of Anatomy of Deceit: How the Bush Administration Used the Media to Sell the Iraq War and Out a Spy. She joins us now from Grand Rapids, Michigan.

Thanks for joining us, Marcy.

MARCY WHEELER, INVESTIGATIVE JOURNALIST: Thanks for having me.

DESVARIEUX: So Marcy, let’s first talk about the verdict. Sterling’s getting three and a half years. Former CIA director David Petraeus also disclosed classified information to his biographer and former lover, and he received a sentence of two years probation, and $100,000 fine. What do you make of Sterling’s sentence?

WHEELER: Well, as compared to Petraeus it’s outrageous, because Petraeus leaked far more information and far more damaging information to his mistress. Compared to what the government wanted to sentence Sterling to, which would have been 19 to 24 years, it’s a much smaller sentence. And so it’s, I think, good for that perspective, compared to the evidence that was used against Sterling in trial. It’s a really weak case. It was mostly circumstantial. In fact, I can guarantee you the government had far, far better evidence against Petraeus than they did against Sterling.

So you know, it’s sort of a–I’m glad for Sterling that he’s not going to lose the rest of his life, which is what the government really wanted to happen. But there still are many problems with the government’s inconsistencies about how it treats espionage. What it calls espionage, which is really just leaking.

DESVARIEUX: All right. Let’s talk a little bit more about the evidence and the facts behind the case. How much evidence did the government have actually against Sterling?

WHEELER: It was really flimsy. It was almost all metadata. You know, when they say, oh, don’t worry about these surveillance programs because it’s just metadata. What they had against Sterling was call records of him speaking to Risen just for something like four and a half minutes before Risen tried to publish his first New York Times story. And then some longer conversations in 2004 and 2005. But they didn’t have any content. I mean, the only tiny piece of content they had that implicated this at all was Sterling emailing Risen with a link to an unclassified CNN story on Iran and nukes. But it didn’t have any classified information in it. So there was no evidence that he actually passed on the information.

And then the government kind of bootstrapped claims that Sterling had a letter that was shared with Merlin, the Russian who dealt these nuclear blueprints to Iran. And their evidence there was even flimsier. I mean, they said look, we found these three documents that weren’t originally classified secret but we now say are secret when we searched his house in Missouri, and therefore we assume he had an entirely different, far more classified document at some point in Virginia. It was kind of a, really kind of crazy argument. But the jury bought it.

DESVARIEUX: Okay. You’ve mentioned that the evidence was flimsy. I mean, I’m a journalist, and I’m thinking to myself, if I go to a potential source and ask them, you know, they ask me for anonymity. I could imagine that they are going to be very, very hesitant to reveal any sort of information to me, especially if it’s potentially classified information. So speak to the significance of this case for journalists, and even democracy.

WHEELER: Well, one of my biggest concerns is I think it is very possible that Sterling said to Risen, go figure out what I was working on in 2000, because there’s a story there. And said nothing more. I mean, Risen had already written books about Russian spying, right? So these, this story was right up Risen’s alley. And he could’ve–you know, the notion that Risen couldn’t put together a bunch of sources on this story is just farcical. And that happens all the time in DC, right? A source says there’s a story here, go find it, and doesn’t actually provide any classified information. Sure there will be phone records of the person saying, you know, go find this story. But that doesn’t mean he shared any secrets, and the government doesn’t have any evidence that he shared any secrets.

The government–the FBI, at the beginning of this investigation, believed that the story had come from a Senate staffer who Sterling had correctly gone to to raise concerns about the operation in 2003. And so it is problematic that a tactic that people use to get journalists to chase a story–and that’s all that we have against Sterling–that that could become criminalized. The government wanted, remember, the government wanted to send Sterling to prison for 24 years for that.

DESVARIEUX: Wow. And for democracy? There’s no free press, what do we have left?

WHEELER: Right. And you know, the government keeps claiming that they proved at trial that this was not a botched operation. That’s not what the trial evidence showed. The trial evidence showed that there were two Russians involved on the program and both had concerns. The trial evidence showed that Sterling, when he saw the Russian get the nuclear blueprints and respond to them, immediately freaked out because the Russian freaked out. Sterling was told to shut up at that meeting. And the Russian who did drop off the blueprints with Iran did a bunch of crazy things. Like, he didn’t give Iran any way to the CIA, which was the entire point of the operation.

And so Sterling had really good reason to be concerned about that operation. And if he did provide that story to Risen–I don’t think, I don’t think the evidence is all that sound. But if he did, there was good reason to be concerned about it, especially in 2003 when this story first got told, because we were starting a war with Iraq on trumped-up evidence.

DESVARIEUX: All right, Marcy. I’m going to present to you the counterargument. Of course, the government claims that they have to be hard-nosed on espionage because at the end of the day it’s about public safety. These are people that sign up for this work. They know the terms and agreements to taking on this work. What do you make of that argument?

WHEELER: David Petraeus. I mean, that argument might make sense if David Petraeus were going to prison for ten years. But if David–I mean, once you give, once you agree to give David Petraeus a hand slap–I mean, Petraeus, he’s on probation. He doesn’t even have to give up his guns, he can travel outside of the country. Once you do that for far more classified information, and even–I mean, leak aside, and the government likes to pretend that Petraeus didn’t share any classified information with his girlfriend. But there’s good reason to believe that it was an underlying background source for her.

But even just storing this information in an unlocked desk drawer is crazy. And that’s why we have laws against that, and to not punish Petraeus, really, at all–I think he got fined 75 percent of a speaking fee. So once you’ve done that, then you’ve undermined the argument, that argument, the counterargument that you’re making, forever. Because he gave, he was sharing far more sensitive secrets than Sterling. And so obviously you’re not all that serious about it. You’re only serious about secrets when it’s a whistleblower sharing them.

DESVARIEUX: All right. Marcy Wheeler, thank you so much for joining us.

WHEELER: Thanks.

DESVARIEUX: And thank you for joining us on The Real News Network.

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31 comments

  1. allan

    Here’s Bush’s former AG Michael Mukasey in July 2013, shortly after the Snowden revelations had started:

    DANIEL ELLSBERG: Without that freedom to investigative or bring checks and balances, we won’t have a real democracy. That’s my concern.

    JEFFREY BROWN: All right, let me — let’s let Mr. Mukasey respond.

    MICHAEL MUKASEY: That is a hysterically inaccurately portrayal of what information is available to the government. What is available are two kinds of information. One is so-called metadata, which is simply a pile of numbers, numbers called and times. They are not even associated with particular people.

    A pile of numbers. This is a former chief law enforcement officer of the US speaking, if one needs any more evidence of the contempt which the rulers have for the ruled.

    1. jgordon

      Well, it’s not as if any of this is surprising. The one thing that can be conclusively and unequivocally stated about the Bush regime, like the current Obama regime, is that these folks lie through their teeth about everything wherever possible.

      I was quite surprised when the original Bin Laden death story came out and most people I talked to didn’t assume that it was a complete lie as a matter of course. And I suppose that if Americans are so completely gullible as to believe anything that comes from the ruling regime then the regime and its media apparatchiks have no reason to discontinue their incessant lying. Heck I’d do the same thing in their position; it seems to be a completely rational and effective strategy to use against the delusional and ignorant American public, so why not?

      1. RUKidding

        My general perspective on the US consumer/”citizen” is that most are effectively in a brain-dead coma from which most will never awaken. The M$M propaganda Wurlitzer has made damn good and sure that most of us are unthinking, unquestioning dumbos easily distracted by complete idiocies.

        I have a few friends who are slightly, but only slightly, aware that all is not well, aka “something’s rotten in Denmark.” Yet when I start to tell them just the basics from the tip of the iceberg (so to speak), most of them say starkly: “I can’t go there.”

        The Fear mongering scare tactics post 9/11, combined with all the rah-rah USA! USA! USA! hype, has done a real number on the majority of citizens, who really don’t want to have to confront the true reality of what’s going on. They prefer, instead, if at all political to watch MSNBC or Fox and nod along with their favorite shill.

        Sad but true. Read it and weep.

  2. Demeter

    This isn’t just “fin de election cycle” but “fin de everything”.

    Events are spiraling out of control of TPTB, at home and abroad. The harder they beat the horses, the more the horses are turning into fire-breathing, Elite-eating dragons. I have a feeling that a lot of scores will soon be settled in the People’s favor.

    I just hope the People survive it.

    1. OpenThePodBayDoorsHAL

      “Welcome my son….
      Welcome…to the Machine.
      Where have you been?
      It’s all right, we know where you’ve beeen…”
      Pink Floyd – 1975

  3. subgenius

    As if by magic…

    …metadata-free peer-to-peer comms…

    ios android macos windows.

  4. charles 2

    Sorry, but saying “there is a story around there, spend some effort digging” IS an information. Security through obscurity is bad security, but helping to defeat it is undoubtedly compromising it.

    That is not to say that whistleblowing is not relevant in a democracy. It is (just look at Watergate), but it will always be illegal and risky for the source. It is up to the journalist and its source to do it in ways that do not compromise the source. Clearly both of them were incompetent in that matter. Using emails and mobile phone ? For someone trained in the CIA ? Are you kidding me ?

    1. Ian

      There is the possibility that he didn’t actually do anything illegal. If you what you are doing is legal, you may not feel the need to protect yourself so vigorously. If what this says is right, he was prosecuted largely on circumstantial evidence that did not actually prove he broke the law, nor that he gave out classified information. Implying something is there, is not giving out classified information.

      1. Ian

        If he said that “I can’t tell you about that, but this is what I can tell you about and you draw your own conclusions.” And worked along that basis. Which seems to me to be a valid and probable reality, then there is no reason to believe that he felt he was doing anything illegal, nor does it seem to me that he did.

    2. Ned Ludd

      The U.S. government has a repressive system of mass surveillance. It is clear, from your comment, that you reflexively side with the state having this power.

  5. James Levy

    My ultimate US law pet peeve: opening and closing arguments. We were told by the judge that neither was evidence. We were also told that we were the sole determiners of the facts in the case, and that our decision should be exclusively based on the evidence. If opening and closing arguments are not evidence, then why do we as jurors hear them? What’s the point, other than making it obvious that the facts are not really the issue, the cute little story the lawyers tell is? I’ve never heard anyone complain about this (so either I’m rather clever or we’ve been so indoctrinated that most of us can’t think straight).

    1. jgordon

      The aforementioned makes perfect sense because jurors are assumed to have discretion in judging the merits of a law itself as well as the evidence. In other words, the standard line judges give jurors about judging the evidence and only the evidence, at least as far as the Supreme Court is concerned, is complete bullshit. Only judges and prosecutors aren’t required to explain this fact to juries and officers of the court such as your defense attorney aren’t allowed to.

      Yet another example of how the status quo has successfully cognitively captured everyone and perverted the system. All that’s left is the anachronistic closing statement that doesn’t seem to make sense anymore.

      1. James Levy

        Interesting, but the vast majority of prosecutors and defense attorneys don’t spend their time talking about the law; they spend their time talking about the person who is liable, like this CIA operative, to get their ass deposited in the can for months or years (or in certain cases, get killed). If my life or liberty was on the line, the last thing I’d want my lawyer doing is speechifying about the demerits of the law that they were charging me with breaking in the vain hope that the jury would invoke a controversial and largely forgotten precedent and opt for nullification. I think Southern juries endlessly giving a pass to whites who lynched blacks killed the appeal of jury nullification a long time ago. I know in principle it sounds like it could be good, but in practice all I can see it used for is to let cops and whites off the hook for killing people (most likely blacks and Hispanics). We are at one hell of a remove from the Zenger case.

        1. jgordon

          Yeah, bad stuff happens when power is distributed away from the center–but far worse happens when power is concentrated. Only concentrated power results in horrors that are more pernicious and oblique so they don’t have the immediate impact of white jurors acquitting violent racists.

          Really, would it be such a terrible thing if the corrupt government lacked the potency to bail out bankers and randomly start resource wars all over the world at the drop of a hat? It’s connected because of where the power center is in society.

  6. AQ

    That should give consumers pause about their casual attitude towards the government’s data hoovering…

    That should give CONSUMERS citizens/residents pause about their casual attitude towards the government’s data hoovering… Consumer is a horrible word here even to make a point.

    1. Yves Smith Post author

      I hate to tell you, your being surveilled comes about by using consumer devices. If you do not use consumer devices like smartphones and computers, you will not be surveilled. If you use only a landline and only WiFi or computers in libraries, and don’t use Facebook and social media, the officialdom cannot find very much about you from metadata.

      I used “consumer” deliberately because we are opting for convenience at the expense of privacy.

  7. tongorad

    It was kind of a, really kind of crazy argument. But the jury bought it.

    That’s the really scary bit. Isn’t it?

  8. HotFlash

    I don’t recall the jurisdiction in which Jefffrey Sterling was tried, but another whistleblower who went to prison, John Kiriakou, in , says :

    KIRIAKOU: Because this is the Eastern District of Virginia. It’s called the “Espionage Court”. And nobody ever wins in the Eastern District of Virginia. This is why I told Ed Snowden when he first went public, don’t come home, because you won’t get a fair trial. Your jury’s going to be made up of FBI agents, military officers, CIA officers. You’re never going to get a fair hearing here. Never.

    1. washunate

      Yep, Sterling was living in exurban St Louis. Arrested there, but obviously shipped east for the trial. Midwesterners are unreliable; they might accidentally side with the public defender, fraud investigator, and whistleblower over Big Brother.

      Thought you might like this link. The really interesting part of Sterling’s case is why the government was ticked off at him in the first place. Before “Iran”, he had the audacity to assert his right to nondiscrimination in employment. Our leadership class hates uppity workers. This of course comes out of Virginia (even though Sterling initially filed it in NY):

  9. NotTimothyGeithner

    And yet Petraeus is a free man. Hillary voted against the condemnation of moveon despite her vigorous defense of the pig. Obama skipped town to avoid criticism.

    1. RUKidding

      It seemed, briefly, as if Gen Betrayus would get the book thrown at him. My speculation is that Obama hates him and was trying to fence Betrayus in. Betrayus – much much much more so that whistleblowers like Sterling, Kirakou, etc – should really have had the book thrown at him. Yet behind the scenes, it’s clear that Betrayus is very very well connected. So Betrayus very clearly and irrefutably gave away TOP secrets, yet he’s a free man making gazillion$ today.

      That should give everyone pause. Sadly, it doesn’t.

      1. James Levy

        I can never wrap my head around how a class of people who, if they knew any history, would get up and applaud thunderously for the old line “millions for defense, not one cent for tribute!” and yet think Betrayus, whose big claim to fame is that he bribed the Sunni insurgents to kill Shiites (and the occasional al Qaeda loon) and not shoot at us, is some kind of a hero. It boggles the mind.

        1. NotTimothyGeithner

          They don’t “think.” Thinking is hard. They look for easy symbols to for reactionary opinions. The right kind of uniform soothes the mind. Barbara Bush admitted she doesn’t like to bother her beautiful mind.

  10. washunate

    These cases are a great example of the systemic challenges in management philosophy in our nation’s institutions. What good is it to hire more workers when this is how we treat workers already in the public sector?

    1. NotTimothyGeithner

      The treatment would be better with more workers. Labor scarcity increases both bargaining power and the likelihood of more whistle blowers. Management behaves poorly because they have the threat of long term unemployment. The World War II army worked because many of the real terrors didn’t have career soldiers underneath them, they had guys who wanted to win and leave. They didn’t need a recommendation to stay in the army. A career soldier wants to be a team player, so the career minded is more likely to look the other way.

      1. washunate

        Ah, that’s where I would offer a different perspective. I think that’s what is so important about changing the management philosophy first, before worrying about quantity. It’s not about labor scarcity or quantity of jobs or quantity of spending or any compartmentalized economic issue. The notion that monetary policy specifically or economics more generally can solve our problems contributes to the misunderstanding of the actual problem. It is a broad matter of political economy, not a narrow technical matter of economics. The power structure itself must change. The quantity of spending is irrelevant if it continues to be directed by that power structure. Indeed, many of the jobs we already have are wasteful.

        Management behaves poorly because management is immune from accountability, because this is how management wants society to work, from Reagan breaking the air traffic controller strike to Obama making examples of whistle blowers. And one of the great things Sterling’s case demonstrated was how explicitly the government asserts that the government cannot be investigated or questioned, even for the most fundamental components of worker rights and even when the matters cross multiple administrations.

        IMO, of course.

  11. RUKidding

    If you think this will never happen to you, think twice

    That’s the lesson everyone should take away from this shameful action, but most citizens are blissfully unaware about the trial, Sterling’s sentence, etc.

    Caveat Emptor.

  12. curlydan

    Two more cases that on the face show the ridiculousness on the government’s zeal to squeeze the little guys and gals and let the big dogs roam free.

    Petraeus gets a hand slap while others (Kiriakou, Sterling, Manning) get serious jail time. The Chinese American woman gets put through the ringer for alleged spying while the American firms that build huge factories in China in the search for lower wages and production costs are never even questioned about what type of technology they’re providing the Chinese. The Chinese are already playing American firms for fools, but if the technology transfer helps EPS, it’s just bizness to us.

  13. steelhead23

    Mr. Sterling’s crime was defiance. Even if, as alleged, Sterling revealed to Risen that the U.S. purposely “allowed” flawed nuclear weapon manufacturing information to be obtained by Iran, the plain fact is that Iran had already determined that the information was bogus. This is the functional equivalent of admitting that the U.S. attempted to assassinate Fidel Castro in the 60s (multiple times mind you) today. Perhaps a U.S. asset was compromised, but they weren’t compromised by Sterling’s admission of what Iran already knew – they were compromised by Iran’s own efforts. This whole witch hunt, from Chelsea Manning to Ed Snowden is all about ensuring obedience. Well, at least they didn’t blow Mr. Sterling apart with an anti-aircraft gun.

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