Did NYT’s Editors Alert the Government to Risen’s Source?

Let me start by pointing to two data points about the case of Jeffrey Alexander Sterling–the apparent (and alleged) source for James Risen’s reporting on MERLIN.

First, as DOJ’s press release alleges, Sterling first contacted Risen in February or March of 2003. The press release later reveals he first became aware that the FBI was investigating him for leaking classified information in June 2003.

The indictment alleges that beginning a few weeks later, in February and March 2003, Sterling made various telephone calls to the author’s residence, and e-mailed the author a newspaper article about the weapons capabilities of Country A. According to the indictment, while the possible newspaper article containing the classified information Sterling allegedly provided ultimately was not published in 2003, Sterling and the author remained in touch from December 2003 through November 2005 via telephone and e-mail.


According to the indictment, Sterling was aware by June 2003 of an FBI investigation into his disclosure of national defense information, and was aware of a grand jury investigation into the matter by June 2006, when he was served a grand jury subpoena for documents relating to the author’s book.

In other words, Sterling allegedly contacted Risen in early 2003, the NYT never published an article at that point (which would have been just as the Iraq war was starting). But by June 2003, the FBI was already investigating the alleged leak.

Couple that information with the battle between Risen and the NYT over the contents of his book (which I first noted back in 2006).

Through several months in late 2005, Mr. Risen and bureau chief Phil Taubman had clashed over whether Times editors would get a preview of the book’s closely guarded contents, sources said. It was not until Dec. 27—11 days after the wiretapping story had run—that Mr. Risen relented and allowed Mr. Taubman to see the manuscript. Mr. Risen insisted that senior editors who viewed the pre-publication copy sign nondisclosure agreements and agree not to discuss the book’s contents.


A Times spokesperson responded to questions about the Risen book by deferring to the paper’s Ethical Journalism Guidebook, which says reporters “must notify The Times in advance” when writing books related to their beats, “so The Times can decide whether to make a competitive bid to publish the work.”


In October 2004, Mr. Risen first presented editors with a story about the secret N.S.A. wiretapping program, the sources said. Late that same year, Mr. Risen also proposed writing a piece about an alleged foiled C.I.A. plot to deliver bogus atomic-bomb plans to Iran—another story that appears in State of War.

Mr. Risen left on book leave in January 2005. According to multiple sources, he told editors he was writing a book about former C.I.A. chief George Tenet—and did not reveal that he would be using previously reported Times material about the N.S.A. wiretapping in the book. [my emphasis]

So, according to DOJ, Risen first tried to publish a story on MERLIN in 2003. He tried again in late 2004 (after, it should be said, the NYT started protecting Dick Cheney and Scooter Libby in the Plame case). After that didn’t work, he went on book leave, saying he was writing about George Tenet and refusing to tell them it included the NSA story and the MERLIN story. His editors only found out what was included in the book on December 27.

But Risen demanded his editors sign a non-disclosure agreement before he would let them see the book.

Now, according to the NY Observer story, such non-disclosure agreements are routine for his publisher, Free Press.

A spokesperson for Mr. Risen’s publisher, Free Press, would not comment on who had viewed advance copies of the book, but said that the publishing house routinely asks for signed agreements under such circumstances. “In cases where the book is being considered for excerpting or the content of the book is sensitive and news-breaking, we will ask select media to sign a nondisclosure agreement,” the spokesperson said.

But that doesn’t explain the animosity over the book, starting at least from the time in 2004 when he first tried to publish the NSA wiretap and the MERLIN story.

Furthermore, we know that the NYT conducted extensive discussions with the government about publishing the NSA story from the first time they considered publishing it in October 2004. We should assume that they also conducted such discussions on the MERLIN story.

Which, DOJ tells us, would have been just months before the FBI started investigating this alleged leak.

Now, I’m not trying, in any way, to say that the NYT is responsible for the investigation into Sterling. As far as we know, they simply contacted the government for their view on the story (as they are doing, it should be said, on all the Wikileaks cables).

But do you honestly think the Bush White House would honor any agreement they might have with the NYT to not pursue the story?

There is one other possible explanation, of course: that the CIA learned of the story (either through the White House or other means), and not least because they were in a suit against Sterling and because getting him arrested for a leak would absolve them of any settlement with him, they alerted the FBI of a leak of classified information themselves.

Nevertheless, I can’t help but wonder whether NYT’s courtesy of letting the government respond to potential stories is what first launched the FBI investigation into him.

Update: Risen’s lawyer makes it clear that Risen didn’t burn his source.

Risen’s attorney, Joel Kurtzberg of Cahill Gordon in New York, would not confirm that Sterling was a source for Risen. However, Kurtzberg was emphatic that Risen did not disclose any of his confidential sources to the government in connection with its investigation. Kurtzberg also disclosed that Risen, who was known to be fighting grand jury subpoenas from prosecutors, prevailed late last year in his effort to nix the summons.

“Mr. Risen was served with grand jury subpoenas seeking the identity of his confidential source or sources in connection with Chapter 9 of his book. We fought the subpoena, moved to quash and the motion to quash was granted in November, before the indictment issued,” Kurtzberg told POLITICO Thursday. “We argued that his testimony was not necessary.”

“Jim has not provided any testimony or cooperation of any kind to the government in conneciton with their investigation about the confidential source or sources of Chapter 9,” Kurtzberg added. That chapter of Risen’s book dealt with failures in a CIA-led effort to disrupt Iran’s nuclear weapons program.

  1. rosalind says:

    (ew – one wrong word: “But Risen demanded his editors sign a non-disclosure agreement before he would let them sign the book.” assume should be “see the book.”?)

    great – fast-breaking – work. hard to keep up…

  2. Mary says:

    Whatever happened to – “we need to look forward” ??

    You release embarassing information and 7 years later get arrested by a slather-mouthed prosecutor. You torture someone to death and … the DOJ helps disappear the body from the family.

  3. WilliamOckham says:

    Another tidbit, courtesy of Laura Rozen: Risen had written a story in March 2002 about Sterling and his complaints of discrimination.

    It wouldn’t have been hard to put two and two together.

    • emptywheel says:

      No (though I have reason to suspect a good many other journalists were targeted in this investigation). But Sterling only learned of it a year later.

      Incidentally, note how explicit that article is about what Sterling did–they surely would have considered that a leak as well, though given that it was Risen, it would have been easy for him to fill in the blanks.

  4. WilliamOckham says:

    Now that I’ve read that story that Laura Rozen linked to, I’m a little baffled by the redactions in the court cases. The article has all the details for Sterling’s career, including his assignment to the New York station recruiting Iranian spies (of course, the article doesn’t mention why the CIA has a New York station.. lemme see, what could it be… oh, the United Nations… )

    • MarkH says:

      Don’t forget that international lounges of airports are NOT U.S. soil, so they might work there too.

  5. MadDog says:

    From the DOJ press briefing:

    …The indictment alleges that Sterling took a number of steps to facilitate the disclosure of the classified information, including:


    …meeting with the author in person to orally disclose classified information to the author and to provide documents containing classified information to the author for review or use;

    Question: How would the Feds explicitly know and be able to prove this?

    Answer: Either someone at the meeting will testify to this or the Feds have audio, and possibly video, surveillance of such a meeting.

    I would hazard a guess that in the former case, there were only 2 people at that meeting – Sterling and “Author” (Risen).

    Josh Gerstein’s piece claims that “…James Risen insisted through his lawyer Thursday that he did not give away the identity of a former CIA officer…”, and I think it unlikely that Sterling snitched on himself, so it would seem that leaves only the latter possibility that the Feds had Sterling and “Author” (Risen) meeting under surveillance.

    • emptywheel says:

      You would think so, but not necessarily. After all, if they had video or audio surveillance, they wouldn’t have had to subpoena Risen two times (and wouldn’t have been able to fulfill AG guidelines on subpoenaing journalists).

      Of course, it’s possible that someone at the NYT turned over docs Risen had, or referred to them at least.

      • MadDog says:

        …Of course, it’s possible that someone at the NYT turned over docs Risen had, or referred to them at least.

        I thought someone would bring that up, but I hoped it wouldn’t be you. *g*

        That’s hearsay m’dear, I heretell that’s inadmissible as evidence in court. *g*

    • MadDog says:

      And a further question arose based on that suspected “surveillance”:

      Just who was being surveilled? Sterling, or was Risen the primary target and Sterling just fell into Risen’s targeting?

        • MadDog says:

          I wonder if that is the specific reason that the NYT refuses to comment on this story – that they are prevented from doing so by NSLs:

          …A spokeswoman for the New York Times, Eileen Murphy, said the paper had no comment on the development…

          • MadDog says:

            In any event, it sure is interesting that the NYT can’t or won’t talk about this.

            And if the gossip is true, with their paranoia about getting scooped, particularly by the WaPo, and coupled with the fact this relates to one of their superstar reporters Risen, one would think that the NYT would be all over this story.

            As of this comment’s timestamp, nada, zilch, zero from the NYT on this story.

            Their silence is deafening!

  6. emptywheel says:

    Incidentally, one thing the Observer reminds me is that Floyd Abrams was working with the NYT when they were anticipating publication of Risen’s work at the time.

    • MadDog says:

      Floyd’s involvement, and his penchant for protecting the interests of the US government first, would be consistent with the NYT’s year-long slow-roll of the Risen/Lichtblau NSA warrantless surveillance story.

  7. CTuttle says:

    MSNBC recently posted this tale…

    …Then in April 2003, according to the indictment, Risen contacted the CIA’s public affairs director to say that he planned to write a story about the classified program. That prompted U.S. government officials to meet with Risen and representatives of the Times about the “national security implications” of publishing such information. The Times never published Risen’s story. A senior government official familiar with the case told NBC that Condoleezza Rice, then national security advisor under President George W. Bush, was among those who urged the Times not to publish Risen’s information.

    But Risen and Sterling continued to communicate, according to the indictment, which cited e-mails and phone records. “I’m sorry if I failed you so far but I really enjoy talking to you and would like to continue,” Risen wrote to Sterling in a May 16, 2004, e-mail, according to the indictment. Then in September 2004, Risen submitted a proposal for the book that ultimately became “State of War.”