New York Times investigative reporter James Risen is taking a stand. Despite being hounded by both the Bush and Obama administrations to reveal his sources, he has vowed to go to jail rather than abandon his pledge of confidentiality.
As fellow journalists and journalism advocacy groups rush to his side, many fear that the US Department of Justice within the self-proclaimed “most transparent administration in history” is preparing to deliver a body blow to the First Amendment’s promise of press freedom.
“This case is the closest we’ve come to the edge of the precipice, to reporter/source privilege being banned,” said Jesselyn Radack, director of national security and human rights for the Government Accountability Project, in a phone interview.
Risen, a Pulitzer Prize–winning reporter, has been ordered by the DoJ to testify in the prosecution of former CIA employee Jeffrey Sterling, who is accused of leaking information about a botched Clinton-era CIA mission to give Iran phony nuclear information—which ended up giving Iran real information on how to build a bomb. Risen wrote about the failed operation in his 2006 book State of War.
Risen was initially subpoenaed by the Bush administration in 2008, but the order expired as the reporter fought against it through the courts. To the surprise of many, the subpoena was renewed under President Obama in 2010—despite repeated calls to drop the pursuit.
“Risen informed the public about the dangerous stupidity of a CIA operation and seriously embarrassed the agency in the process,” said Norman Solomon, a longtime FAIR associate and co-founder of RootsAction.org, an online advocacy group, in an email exchange. “Evidently a pair of unforgivable sins in the eyes of both the Bush and Obama administrations.”
If the government does uphold its subpoena and Risen is punished for taking his stand, journalists and free press advocates say that this would set a dangerous precedent for the interpretation of press freedom under the First Amendment.
“Functionally, a reporter will no longer be able to promise source confidentiality,” Radack explained. “This will impact people who want to disclose wrongdoing,” she said. “Whistleblowers disclosing fraud, waste, abuse and illegality will no longer go to the press.”
Robust investigative journalism has already suffered from budget cuts and waning interest in long-form journalism, and this “chilling effect” on sources will provide the “final nail in the coffin of the free press as we know it,” Radack added.
In 2011, a federal District Court ruled that Risen could not be compelled by the government to reveal his sources. “A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” wrote District Court Judge Leonie Brinkema, adding that Risen was protected by a limited “reporter’s privilege” under the First Amendment.
The government challenged that decision, and in 2013, the US Court of Appeals for the Fourth Circuit in Richmond, Virginia, reinstated the subpoena, arguing that the First Amendment did not protect Risen from being forced to testify against his source.
In June 2014, Risen’s legal battle reached an insurmountable barrier when the US Supreme Court refused to take up his case, affirming the lower court ruling. Now Risen will have to testify or face contempt of court charges, which can lead to either imprisonment or up to $1,000 a day in fines.
After the high court passed on the case, Risen’s attorney, Joel Kurtzberg, told the Committee to Protect Journalists (6/2/14) that he hopes the government won’t hold Risen in contempt “for doing nothing other than reporting the news and keeping his promise to his source.” He noted that the “ball is now in the government’s court.”
On August 14, a coalition of journalists, media advocacy groups and independent media outlets delivered over 100,000 signatures to the Department of Justice, calling on the Obama administration to drop its subpoena.
The petition—organized by Roots Action along with FAIR, the Center for Media and Democracy, Freedom of the Press Foundation, The Nation Institute and The Progressive—argues that “without confidentiality, journalism would be reduced to official stories—a situation antithetical to the First Amendment.”
On the day the petition was turned in, Risen was joined by a number of free press advocates, including Radack and Solomon, at a press conference at the National Press Club in Washington, DC. Speaking before the roomful of reporters, Risen said, “The real reason I’m doing this is for the future of journalism.”
“Freedom of the press is the most important freedom,” agreed Delphine Halgand, director of Reporters Without Borders’ Washington office, who also spoke at the press conference. “It is the freedom that allows us to verify the existence of all other freedoms.”
When asked about the Risen case at a closed-door meeting with a group of journalists, Attorney General Eric Holder (New York Times, 5/28/14) reportedly declared, “As long as I’m attorney general, no reporter who is doing his job is going to go to jail.”
Despite this pronouncement, the prosecution of whistleblowers has become a mainstay of Obama’s presidency (Extra!, 9/11; FAIR Media Advisory,8/27/13). During his time in office, the DoJ has pursued eight prosecutions of leakers under the Espionage Act, more than double the total number of such prosecutions since the law was enacted.
McClatchy News (6/20/13) also revealed the existence of a government employee “tattletale” program. By having government employees spying and reporting on each other, the Obama initiative, dubbed “Insider Threat,” aims to thwart future leakers.
According to the Reporters Without Borders’ annual Press Freedom Index (2/12/14), the US dropped 14 positions from 2013 to 2014, and now ranks 46th worldwide. The report notes:
In the US, the hunt for leaks and whistleblowers serves as a warning to those thinking of satisfying a public interest need for information about the imperial prerogatives assumed by the world’s leading power.
Advocates say to ensure the protection of journalists in this post-9/11 surveillance state, it is critical to pass a federal shield law that will protect reporters from being forced to disclose confidential information or sources in court. (Most states have some sort of law or protection in place.)
There is a shield bill currently making its way through Congress—S. 987, known as the Free Flow of Information Act—though there is concern that the legislation has too many loopholes that allow the government to claim broad “national security” exceptions and leave some whistleblowers without protection (Dissenter, 5/12/14).
In a recent interview with Times colleague Maureen Dowd (8/17/14), Risen referenced Obama’s “most transparent administration” claim.
“It’s hypocritical,” Risen said. “A lot of people…don’t want to believe that Obama wants to crack down on the press and whistleblowers. But he does. He’s the greatest enemy to press freedom in a generation.”
Among those who have come to Risen’s defense are 21 fellow Pulitzer Prize–winning reporters, who each signed the Roots Action petition and issued personal statements on his behalf.
Included in the testimonies is one from Risen’s New York Times colleague Barry Bearak, who wrote that Risen “is carrying the banner for every American journalist.”
“If he goes to jail,” Bearak continued, “a good bit of our nation’s freedom will be locked away with him.”
New York Times Has Benefitted From Leakers—but Not Vice Versa
As the Department of Justice doggedly pursues Pulitzer Prize–winner James Risen, the New York Times has been forced to enter the fray of the government’s so-called “war on information.”
The Times, like many mainstream publications, has openly acknowledged its practice of seeking government approval for sensitive stories (2/6/13), and often serves as a government mouthpiece by publishing sanctioned “leaks” of information.
And although the Times has benefitted enormously from actual leaks of government secrets that were vital for the public to know, it has historically maintained a cautious—if not skeptical—distance from those who risked their careers and liberty to reveal such truths.
Despite publishing the invaluable Pentagon Papers, which exposed government deceptions about the Vietnam War, the Times refused to provide leaker Daniel Ellsberg with any help in his criminal case. According to Ellsberg, then–executive editor Abe Rosenthal told the whistleblower that the paper had no policy for supporting a source who is being prosecuted for leaking information.
“The Times,” Ellsberg explained, “thinks of leakers, wrongly, as having clearly broken the law.”
The paper has given even less support to Chelsea Manning, despite having partnered with Wikileaks in July 2010 to release important revelations from the hundreds of thousands of classified war logs and State Department cables revealed by Manning.
In addition to disparaging her character and questioning her motives in a Bill Keller column (3/11/13), the Times treated Manning’s trial as a nonevent—not sending a single reporter, and only running one AP wire story (12/30/12) on it.
Later, New York Times public editor Margaret Sullivan (5/12/12) wrote that the paper had “missed the boat” by not covering Manning’s pretrial testimony.
The paper did run an editorial (1/1/14) supporting NSA whistleblower Edward Snowden; however, that was months after an earlier editorial (8/6/13) essentially calling for Snowden to be extradited for prosecution.
In a January 2013 column about the prosecution of Chelsea Manning, journalist Glenn Greenwald warned corporate media that they “might want to take a serious interest” in the case and “marshal opposition to what is being done to Bradley Manning.”
He continued: “If not out of concern for the injustices to which he is being subjected, then out of self-interest, to ensure that their reporters and their past and future whistleblowing sources cannot be similarly persecuted.”
It seems that time has come.