The Government's Flawed Single-Source Theory of Investigative Journalism

As reported by ExposeFacts last month, former CIA officer Jeffrey Sterling wants to show that several of the key witnesses against him (including his superior at CIA) have themselves mishandled classified information. A government filing released last month provides more details about Sterling's claims, revealing that four witnesses who were cleared into the Merlin Program revealed in James Risen's book have mishandled classified information, taking documents home improperly.

The government's argument explaining why that doesn't hurt its case is rather revealing. It explains that, because the four other people who had access to Merlin did not share all of a series of traits ascribed to Sterling by the government, they "did not face the same sort of scrutiny" as Sterling.

Similarly, the defendant says that the jury is entitled to know that four witnesses with access to Classified Program No. 1 "mishandled" classified material because this fact, standing alone, should make them suspects as potential sources for Risen. If any of these witnesses had a prior relationship with Risen, was shown to have communicated with Risen at the time of the leak, had worked as a case officer on Classified Program No. 1 at time portrayed in the book, had helped prepare the document disclosed by Risen in his book, had participated in the San Francisco meeting described in the book, and had been fired from the CIA and thereafter had threatened to retaliate against the CIA for having been fired, they too most likely would have been suspected of having disclosed classified information to Risen regardless of whether they "mishandled"classified information on some another occasion. They did not, of course, share these traits with the defendant, and, accordingly, they did not face the same sort of scrutiny as did the defendant.

This reveals what should be a weakness in the government's case. Because (it claims) it has no communications records showing these others speaking with Risen, they must not have, as if a journalist who had covered the CIA for years could not manage a secret conversation with a source. Because (it claims) the others were not both case officers at a meeting in San Francisco who had had a falling out with the CIA, they were not "suspected of having disclosed classified information to Risen."

This series of evidence might implicate Sterling, but it does not, itself, rule out anyone else.

All the more so given the reality of investigative journalism. For the government's argument to make sense, Risen would have had to have written an entire chapter of his book off a single source, Sterling.

That's rarely how good investigative journalism works.

Mind you, this is an argument the government has made successfully in past leak investigations. In the investigation into a leak about a thwarted Al Qaeda in the Arabian Peninsula attack (which was actually a sting), the government only charged one person, retired FBI Agent Donald Sacthleben, even though the journalists in question clearly knew of the plot when they first asked him about it. Even as he plead guilty to serving as one source, Sachtleben emphasized he could not have been the original source.

I was neither the sole nor the original source of information to 'Reporter A' about the suicide bomb. The information I shared with Reporter A merely confirmed what he already believed to be true. Any implication that I was the direct source of a serious leak is an exaggeration.

But by proceeding as if journalists reported stories relying on a single source, the government facilitates witch hunts against single individuals, all while dismissing other possible sources and presenting the illusion that the trade in secrets is not widespread in government.

Sterling has won the ability to present some, but not all, of this information at trial -- the extent of Judge Leonie Brinkema's ruling remains sealed for declassification. He has also subpoenaed the Russian scientist who played a role in the plot.

But that may not permit him to show anything more than the government already admitted to in this filing: that it looked only for the most obvious source, not all of them, behind a piece of investigative reporting.