New York Times reporter James Risen's unsuccessful legal claims of reporter’s privilege have grabbed the bulk of media attention. Leakers on the defensive Journalists like James Risen get the attention in classified leak cases, but their sources often pay the price for revelations.

New York Times journalist James Risen has escaped jail time for refusing to reveal his sources, but that doesn’t mean the case that brought him before a federal judge is over. In fact, the man at the center of the accusations remains squarely in the government’s cross hairs.

Jury selection in the government’s case against alleged leaker Jeffrey Sterling, a former CIA agent, began in Alexandria, Virginia, Tuesday. Though that jury will ultimately decide the merits of the case — if it’s not settled first — some observers maintain an injustice has already been perpetrated: Media attention has focused almost entirely on Risen, while the source of his reporting has been largely ignored.


Whistleblower advocates charge that the news media are disproportionately concerned with challenges to reporters and their First Amendment rights at the same time that those who share information with journalists pay the lion’s share of the price of being brought to trial and sentenced to prison, a situation that harms the free flow of information and those willing to risk leaking. Risen escaped a seven-year legal battle without being ordered to identify his sources, let alone go to jail; Sterling faces the possibility of spending his life behind bars.

Sterling is facing 10 felony counts stemming from an FBI investigation into how Risen obtained highly classified details of what the journalist described in a 2006 book as a deeply flawed CIA operation to undermine Iran’s nuclear program.

Yet it was Risen’s unsuccessful legal claims of reporter’s privilege — and the ensuing drama in which Attorney General Eric Holder backed away from the threat of jail for the Pulitzer Prize-winning reporter — that have grabbed the bulk of the media attention, with Sterling relegated to what has often seemed a peripheral role in his own prosecution.

“A whole lot more people know the issue about Risen’s refusal to testify, but I dare say a goodly number of those people could not even tell you what the underlying case was about, what Sterling was accused of,” said Bill Leonard, former director of the Information Security Oversight Office. “And in some ways that’s as compelling, if not even more so, in terms what’s at stake for the nation.” .

Leonard and others argue that the role of whistleblowers in leaking information is at least as vital a First Amendment interest as reporting that information. They believe that the lack of attention to the prosecution of sources harms the flow of information to the press and the public’s ability to hold the government accountable.

“A lot of the public interest — and outcry — diminishes with the issue of reporter-source privilege being removed, which is ironic,” said Jesselyn Radack of the Government Accountability Project, referring to cases in which reporters are ultimately not asked by the courts to violate their confidentiality agreements with sources. “I’ve always said these cases are a back-door attack on — going after — journalists. In every single whistleblower-leak investigation, journalists’ names are laced throughout the indictment.”

A Sterling defense lawyer chafed at the focus on the journalist involved rather than the predicament faced by his alleged source.

“This is the Sterling case, not the Risen case,” a frustrated lawyer for Sterling, Edward MacMahon, told POLITICO. “I suspect from the news coverage that most people think Risen is the one who was indicted and is being put on trial.”

And Sterling has legal challenges Risen didn’t face. For one thing, while the fight over Risen’s claims of reporter’s privilege triggered a debate about the role of the press in a free society, judges generally do not permit the defendant in a leak case to argue that his actions were justified because he was trying to expose wrongdoing.

“There’s still a huge impact on the First Amendment and the public’s right to know, but unfortunately an Espionage Act defendant can’t raise the First Amendment or the public interest in his defense,” said Radack. “I wish people could focus more on who the whistleblower is and the nature of his disclosure and his intent.”

Yet many who have worked in government contend that leakers’ inability to invoke the First Amendment is for good reason. Former prosecutor Peter Zeidenberg, now with law firm Arent Fox, noted that while some leakers may be whistleblowers, others may have less laudable motives.

“People do this stuff for a whole range of reasons and they’re going to continue to — for altruistic reasons, for selfish reasons, for revenge or notoriety,” he said.

The ex-prosecutor also said the threat of prosecution is important to keep those entrusted with secrets from revealing them without any compunction.

“They should understand there is a risk to doing so and they could get prosecuted,” Zeidenberg said.

Still, some of the issue of Sterling’s intent seems certain to creep into the trial, since prosecutors say they plan to argue that the defendant’s disclosures were aimed at taking revenge on an agency he bore a grudge against because it rebuffed his claims of racial discrimination.

Prosecutor James Trump said Monday that he plans to tell jurors that, contrary to Risen’s reporting, the CIA program to give false nuclear blueprints to Iran “wasn’t flawed.” Trump also asked the judge not to tell jurors that Risen is a Pulitzer Prize-winning reporter, since prosecutors plan to argue that the story Sterling told Risen and that Risen published was far from the truth.

“There are a lot of inaccuracies,” Trump said. “We are not going to be applauding Mr. Risen’s research.”

The trial set to get underway this week for Sterling is historic. It’s the first federal civilian trial for leaking national security secrets to the media in almost three decades, since Navy intelligence analyst Samuel Morison was put on trial in Baltimore in 1985 for sending spy satellite photos to the British publication Jane’s Defence Weekly.

Morison was convicted and sentenced to two years in prison, but in 2001 he was pardoned by President Bill Clinton, raising doubts about the fairness of the prosecution.

Most leak prosecutions result in a guilty plea, since the potential punishment is severe and the government has an incentive to avert a trial, which can disclose additional national security secrets — or at least confirm and publicize them.

However, Sterling seems intent on rolling the dice and going to trial. A prosecutor acknowledged Monday that the case against him is “circumstantial.” Without Risen’s testimony, the prosecution is going to be arguing that a pattern of phone contacts and indications of meetings between the former CIA officer and the journalist prove that Sterling is the only one who could have disclosed the sensitive Iran-related caper, known as Operation Merlin.

Still, prosecutors must prove their case beyond a reasonable doubt — a hurdle that could be tough to mount without incriminating emails or a wiretap showing precisely what Sterling told Risen. MacMahon said in court Monday that prosecutors don’t have evidence of that kind about where Risen obtained his reporting or what range of sources he may have had.

While the protracted fight over reporter’s privilege and the controversy over calling Risen as a witness may have undercut the government’s case against Sterling, there’s no doubt it has dragged the case out. Sterling, who has a law degree, has been virtually unemployable in the seven years since he was indicted at the end of 2007, the defense lawyer said.

Sterling’s long-delayed trial is expected to draw some testimony from Congressional aides who knew about the CIA program or dealt with complaints from Sterling. In addition, at least one marquee name is expected on the witness stand: former National Security Adviser Condoleezza Rice.

Rice, who later served as secretary of state, is expected to testify about a warning she gave The New York Times in 2003 against publishing the information Risen had gathered about the CIA program. The Times ultimately killed the story, but Risen included it in his 2006 book, “State of War.”

As the trial loomed Monday afternoon, U.S. District Court Judge Leonie Brinkema publicly mulled whether jurors should be asked about another boldfaced name: former CIA Director and retired Gen. David Petraeus. A Times report last week said the FBI and prosecutors are recommending that he be indicted for sharing classified information with his mistress.

Whistleblower advocates have long complained that leak prosecutions almost always target low- and mid-ranking officials, while senior officials have carte blanche to leak with abandon. The Petraeus situation appears to neatly tee up that alleged double standard, but prosecutors said Monday they don’t want any mentions of that or other leak cases in front of the Sterling jury aside from the one they are to consider. The want to avoid complicating the case or making Sterling’s trial a referendum on leak issues, the First Amendment and related hot-button issues.

MacMahon assured the judge he doesn’t plan to go down that road.

“I have no intention of arguing that because Mr. Petraeus hasn’t been charged that Mr. Sterling should walk,” the defense lawyer said.

Sterling’s case is one of nine prosecutions under the Obama administration for leaking classified information to journalists — three times as many cases as were brought under all prior administrations combined.

One reporter who spent three months in jail after her own showdown with prosecutors trying to get her testimony in a leak investigation about a decade ago, former Times journalist Judith Miller, said Monday she’s still troubled by the wave of leak prosecutions — even if prosecutors make their case without putting a member of the Fourth Estate on the stand.

“While I’m delighted that Jim doesn’t have to testify and that this is a happy ending to this long fight, I don’t think we should sit back and relax and say, ‘No problem here. Time to move on.’ It has a hugely chilling effect,” Miller said. “I, as a reporter, detect a great deal more reticence on the part of people I’ve dealt with for over a decade. They are terrified to talk. They’re terrified to talk not about secrets but just to talk about how decisions were made — the kind of information reporters are supposed to tell the public.”