You know, I very much want Jeffrey Sterling to defeat the government’s attempt to criminalize whistleblowing. I very much want James Risen to succeed in avoiding expansive testimony in the Sterling case.

But this is bullshit.

Sterling’s lawyers plan to call Professor Mark Feldstein to make silly claims about a tie between the narrative voice an author uses and the sources he may or may not have relied on.

Mr. Feldstein wil testify that he has read Chapter 9 of State of War, authored by James Risen, and that based on his training, education, and experience as a working journalist and an academic studying journalism, will opine that it is written in the third person omniscient, a narrative style in which the reader ís presented the story by a narrator with an overarching perspective, seeing and knowing everything that happens within the world of the story, regardless of the presence of certain characters, including imputing to the characters’ internal voices what they are thinking and feeling. This style has become increasingly popular with mainstream journalists in recent years, as exemplified by books authored by Bob Woodward. One effect of the third-person omniscient narrative style is that it tends to mask the identity of a story’s sources, protecting both the anonymity of sources and disguising the number of sources. It is not uncommon using this style for an author to ascribe thoughts or motivations to particular “characters,” whether or not the author has actually spoken directly to the individual to whom thoughts and motivations are being ascribed. Indeed, it is not an uncommon practice to ascribe thoughts and motives to an individual to whom the author has not spoken intentionally to obscure who the actual source(s) for a story were.

I have a number of problems with this.

First, the narrative voice is, in places, more nuanced than a simple “third person omniscient” voice–as when Risen interjects the direct speech (in this case, thought) of the Russian scientist without quotations:

The Permanent Mission of the Islamic Republic of Iran to the International Atomic Energy Agency (IAEA) wasn’t the easiest office in Vienna to find.

They could have at least given me good directions.

As he stumbled along into Vienna’s north end, in the unglamorous neighborhood surrounding the Parterstern U-Bahn station, the same question pounded in his brain again and again, but he couldn’t find an answer.

What was the CIA thinking?

That doesn’t negate the larger point–that Risen intersperses “characters'” thoughts with omniscient narrative. But it sort of makes the point seem amateur from a narratological standpoint.

Then there’s the invocation of Woodward, that magic journalist’s name, to obscure the point. Woodward made this style of reporting popular, the filing suggests, so it must be acceptable journalism.

But that suggests two things that are not in evidence. Woodward never really hides his sources. Why bother, when there is an unwritten “Woodward rule” that says he, and perhaps only he, will never be prosecuted for reporting top secret information? Thus we–at least I–am safe assuming Woodward spoke with precisely whom it appears he spoke with, not just because we know he is systematically accorded that kind of access, but because we know sanction for participation in his semi-official histories comes straight from the top.

Woodward uses this style to make it clear (or at least suggest) that these top officials are his sources, not to obscure the kind of top-level access everyone knows he has. It’s his brand.

The filing goes on to suggest that because Risen used this same technique he succeeded in hiding his sources.

Chapter 9 of State of War attributes thoughts and motivations hoth the “the Russian scientist” and to “the CIA case offcer.” It is not possible to infer from this attribution whether Mr. Risen spoke directly to both of these individuals, one of them or neither of them, in gathering the information contained in Chapter 9, much less what information, if any, either individual provided Mr. Risen.

Now, in the literary world, scholars are cautious about making definitive statements about the intentionality of the author (particularly as with books like this, which have clearly been edited to make the book a good read). But I’ll grant that a good investigative journalist might be (though might not be) a lot more cautious about the legal implications of the narrative voice used than a fiction writer.

But there’s another problem. The filing later suggests a reader can draw conclusions from the narrative presentation of evidence.

Taken at face value, Mr. llsen had multiple sources for the portion of Chapter 9 of State of War that discusses a CIA operation to provide flawed information to Iran’s nuclear program. These sources include multiple human sources as well as documentary sources, which may have been  provided to Mr. Risen by persons who also gave oral information to Mr. Risen or by others in addition to those who gave him oral information. Mr. Feldstein bases this opinion, in part, on the following examples: 1) page 197 of the book attributes information to a “secret CIA report”; 2) the material quoted at pages 204-05 of the book appears to have been quoted from a documentary source; 3) page 208 attributes views to unnamed “offcials”: 4) page 211 cites “several former CIA offcials”; and 5) page 211 indicates that the Senate Selcct Committee on Intellgence received information about the program from the “CIA case offcer,” but states the Committee took no action.

Sterling’s team is trying to have it both ways, drawing on Feldstein’s amateurish identification of narrative voice to suggest one cannot draw conclusions about sources, then showing Feldstein doing just that based on the clear indications given in the narrative.

And there’s one more problem with the filing (that may not be problematic for Sterling’s lawyers, per se, but should be for Feldstein).

The filing suggests that the profession of journalism tolerates when reporters use omniscience to hide their sources.

But the profession does not approve when journalists use omniscience to invent details they have no way of knowing. Witness the criticism of John Heilemann and Mark Halperin for doing just that in Game Change. One of the most prominent critiques–from the NYT–specifically took Heilemann and Halperin to task for not doing what Woodward does–showing some of his work.

They proceed in these pages to serve up a spicy smorgasbord of observations, revelations and allegations — some that are based on impressive legwork and access, some that simply crystallize rumors and whispers from the campaign trail, and some that it’s hard to verify independently as more than spin or speculation on the part of unnamed sources. The authors mix savvy political analysis in these pages with detailed reconstructions of scenes and conversations they did not witness firsthand (like an exchange that Hillary Rodham Clinton and Bill Clinton had on a beach in Anguilla). They employ the same sort of technique Bob Woodward has pioneered in his best-selling books: relying heavily on “deep background” interviews, along with e-mail messages, memorandums and other forms of documentation to create a novelistic narrative that often reflects the views of the authors’ most cooperative or voluble sources. Unlike Mr. Woodward’s last two books this volume has no source notes at the end.

To succeed, this defense effort has to basically argue that either Risen or his sources may have simply invented what the Russian scientist and the case officer said. It has to argue that Risen is the same kind of hackish reporter that Heilemann and Halperin are, evidence to contrary notwithstanding.

Now, suggesting Risen engaged in bad journalism is totally within the right of Sterling’s lawyers as they mount a defense. And if it keeps him off the stand, I’m sure Risen won’t be that bothered by the suggestion he either made shit up or allowed his sources to.

But the entire effort seems legally pointless, given that they’re trying to use Feldstein both to point to other possible sources for Risen while at the same time claiming that Risen’s narrative voice makes it impossible to do just that.