On July 19, 2013, a 2-1 majority of the Fourth Circuit Court ruled that a subpoena for Pulitzer Prize-winning (awarded for the reporting at the center of this case) New York Times reporter James Risen’s testimony about a source for his book, State of War, would be upheld. Later, the full court refused to review this decision. The court relied on a 1972 Supreme Court case, Branzburg v. Hayes, to find that the First Amendment protection of freedom of the press does not include any right to protect sources in a criminal case.
Judge Roger L. Gregory, a member of the court, wrote an informed dissent in the case in which he found good reason to support Risen, based in part on the ambiguities of the Branzburg decision and on common law. He noted that the book provided essential information about the CIA’s inept attempts to find evidence of an Iranian nuclear program. This was especially important after bad evidence about an Iraqi nuclear program led to an unnecessary war. Gregory also found that the government has asserted only that these disclosures harmed national security but had presented no evidence of harm – based, of course, on claims of national security.
This ruling is especially important as we find out more about secret government spying programs, now involving records of almost all US citizens. In light of the recent disclosures, we see how essential it is to protect solid investigative reporting – which the court declined to do. For democracy to work well, citizens must not only participate by voting, but be well-informed.
The Risen decision, if allowed to stand, will do great harm by impeding the ability of all reporters to inform us about government actions. Any promise of confidentiality by a reporter to a source will now be weighed against the possibility that the reporter will be compelled to testify and threatened with prison if he or she refuses. The government will be able to classify any embarrassing information with much more security that it will not be revealed. Imagine the lack of Watergate information if “Deep Throat” felt he could not talk to Woodward and Bernstein because of this possibility. The classified information they uncovered was classified solely to protect President Richard Nixon politically. The Pentagon Papers case is also highly relevant, because much of what we know of the planning and assessment of that awful war is based on these classified documents being released to the media.
As with all of these cases, there is also a real human being involved. I personally know Jim Risen. He reported the story of my attempts to protect the troops and taxpayers by holding Halliburton/KBR accountable for their mismanagement of the LOGCAP contract in Iraq. He is a family man who may be forced to make an excruciating decision whether to go to jail or violate a personal commitment not to reveal or harm a source. He has made it quite clear he will not identify his source.
The purpose of requiring Risen to testify is also at issue. The summation of the case against Jeffrey Sterling, a former CIA officer accused of leaking the information, by the court decision, cited above, indicates the government has identified Risen’s source and established quite a case against him without Risen’s testimony. Risen’s investigative abilities have been a bit of a problem for spurious government secrets for some time and for several administrations. This attempt to bully him appears to be equal parts harassment and an attempt to intimidate future reporting. As you will find in the decision, both of these motives are not legal and would require quashing the subpoena.
There are two possible favorable outcomes. The trial of Sterling could be delayed until the Supreme Court makes a ruling favorable to Risen. This would give the Supreme Court an opportunity to clarify the flawed Branzburg decision. Unfortunately, the current court is not that favorable to civil liberties.
Given the makeup of our Supreme Court, the better solution would be for Attorney General Eric Holder to direct the US attorney to drop the subpoena for Mr. Risen’s testimony. This would be in accordance with the recent guidelines which Holder has issued. It would also reassure us that President Obama is committed to an open society with the proper information to make political decisions. It is the right thing to do.