Image: James Risen of The New York Times
Alex Wong  /  Getty Images
Reporter James Risen of the New York Times and author of the book "State of War" speaks during a taping of "Meet the Press" on Jan. 8, 2006.
By Michael Isikoff National investigative correspondent
NBC News
updated 2/25/2011 7:11:51 PM ET 2011-02-26T00:11:51

A court filing in the case of a former CIA officer accused of spilling secrets about Iran’s nuclear program provides new details about the extraordinary measures Justice Department prosecutors are using to identify government leakers.

The former CIA officer, Jeffrey Sterling, was indicted in December on charges that he disclosed “national defense information” to New York Times reporter James Risen. 

In a court filing this week, Sterling’s lawyers revealed that, as part of the investigation, prosecutors obtained Risen’s telephone, credit and bank records. They also obtained credit reports on Risen conducted by three credit agencies — Equifax, TransUnion and Experian — as well as records of his airline travel, the filing states.

Those records, as well as other material, have been turned over to Sterling’s lawyers as part of pre-trial discovery in the case, the lawyers said.

“I find this very disturbing,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “This tells us the Obama administration will do almost anything to figure out who is leaking government information.”

Matt Miller, a spokesman for the Justice Department, declined to comment on the court filing or say whether department subpoenas for Risen’s bank and credit reports occurred under President Barack Obama’s attorney general, Eric Holder, or earlier, during the Bush administration, when the investigation into Sterling began. A lawyer for Risen also declined comment.

Read more reporting by Michael Isikoff in The Isikoff Files

Although there have been other public controversies over subpoenas — real and threatened — to reporters in recent years, there have been few, if any, cases in which it has been documented that federal prosecutors obtained the bank records and credit reports of journalists.

But a former Justice Department prosecutor, who spoke on condition of anonymity, said subpoenas for such records — often without the journalists’ knowledge — are not a surprising tactic, given the unusually aggressive Justice Department efforts to prosecute leakers in recent years.

In fact, the former prosecutor noted, that because subpoenas for financial records are standard practice in criminal investigations, there is no reason for the Justice Department not to use them to obtain records from journalists in leak probes. The data from credit and bank records would allow prosecutors to home in on where journalists have traveled, lunches or dinners they might have paid for, and other information that could help identify their sources for a story, the former prosecutor said.

Reporters urged to take precautions
Dalglish said she now repeatedly urges journalists to use old school methods when communicating with their sources to avoid creating any paper trail.

“What I tell them is ‘buy disposable phones, purchase manila envelopes and identify park benches’” to meet their sources, she said. 

Read previous story: Ex-CIA officer charged with leaks to Times reporter

The government’s efforts to identify Risen’s source was unusually aggressive by any measure, lasting more than six years. It stems from what was deemed to be damaging disclosures in Risen’s 2006 book “State of War,” which included a chapter about a CIA program called “Operation Merlin.” Risen described it as a botched attempt under the Clinton administration to sabotage Iran’s nuclear program by feeding the Iranians deliberately flawed design blueprints for key nuclear components. But according to Risen’s book, the Iranians uncovered the scheme and the effort ended up accelerating Iran’s nuclear program.

The government’s investigation led the FBI to Sterling, who had worked on the Iranian desk at the CIA and, according to his indictment, had raised concerns about the program to the Senate Intelligence Committee. He had also filed a lawsuit against the CIA alleging that he had been discriminated against — and was turned down on his request to work on sensitive Iranian cases — because he was African-American.

As part of the investigation, prosecutors twice subpoenaed Risen to testify —once during the Bush administration and more recently under President Obama. In both cases, the subpoenas were quashed by a federal judge. But the indictment of Sterling — for allegedly violating a World War One era law known as the Espionage Act —  could now lead to yet another court battle over whether the reporter will be forced to testify at Sterling’s trail. Sterling has pleaded not guilty to the charges.

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The larger concern, according to Dalglish, is the growing number of leak investigations under President Obama’s Justice Department — a development considered especially ironic since the White House had publicly endorsed a so-called “shield” law to provide limited protection for journalists’ sources. In fact, the efforts to enact a shield law have all but died. Instead, the administration has engaged in highly public efforts to stanch government leakers, the current probe into WikiLeaks being the best-known example. In fact, said Dalglish, “They don’t like leaks of any sort.” 

Until recently, such prosecutions were exceedingly rare, largely because leakers were notoriously difficult to identify. But in the past year, in addition to Sterling, Justice Department prosecutors have indicted a former National Security Agency official for allegedly leaking to a Baltimore Sun reporter and a  former State Department contractor for allegedly leaking to Fox News. In addition, military prosecutors have charged Army Pvt. Bradley Manning for allegedly leaking to WikiLeaks.

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