The New York Times reporter James Risen is in a waiting game with the Department of Justice and the Supreme Court, and the fate of a journalist's right to protect sources lies in the balance. Will his case be the watershed for journalists to have the right to protect their sources, or will he have to go to jail in the face of the courts ruling against him? What will be the final say for reporters and their sources: court rulings or a federal shield law that would purposely protect reporters from having to reveal their sources?
I spoke to Mr. Risen about the choices he has to make and what solutions he believes could give reporters and their sources the protection needed to continue to be a watchdog over our government.
In 2006, he published a book, State of War: The Secret History of the C.I.A. and the Bush Administration, to expose some of the CIA abuses that he discovered during his reporting. Chapter 9 of that book told a story about an ill-fated attempt by the CIA in 2000 to have a former Soviet nuclear scientist hand altered bomb making blueprints to the unsuspecting Iranian government.
Unknown to Risen, the Department of Justice was searching his phone, bank and credit card records to make a case against Jeffrey Sterling, a former CIA agent who has been charged, under the draconian Espionage Act, with leaking the Iranian bomb story to Risen. Sterling has pleaded not guilty in the case. The DOJ then subpoenaed Risen to force him to testify about his dealings with Sterling. Risen's attorneys won the first round to stop the testimony by claiming that Risen's testimony was not crucial to the case but lost the second round in the courts. The ominous language of the United States 4th Circuit Court of Appeal's opinion is guaranteed to strike at the heart of any journalist who is protecting a source:
There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.
Jeffrey Sterling is one of eight people that the DOJ has charged with the Espionage Act for leaking classified government information during the Obama administration. Only three other people have been charged by all the other past presidents combined. This aggressive stand by the Obama administration was a boomerang reaction to a slew of national security leaks, including Chelsea Manning and Edward Snowden. Since so much of our national security information has been classified by the national security agencies working to cover their tracks, national security reporting has become on the front lines of this fight between reporter rights and the government prosecution of security leaks.
In January of this year, Risen appealed to the Supreme Court to keep from testifying and to establish the right of a reporter to protect his sources.
I spoke to Risen on why he thinks that the Obama administration continues to press for him to testify and threaten reporters' rights to protect sources. Risen believes that Obama is "not as liberal as people thought he was" and is really a "politician at heart" who "wants power like all other politicians." He also believes that the Obama administration likes to tightly control its message and "does not like the press."
He is also concerned that there is a lack of respect for privacy and civil liberties in this administration. He knows that it is hard for the administration to give up their executive powers once they have it. He believes that Obama knows that it is "easy to scare people on national security issues," and by that means, convince them it's necessary to give up other rights. Risen worries that Obama is as bad as, if not worse than, the Bush administration on press freedoms, but Democrats around the country and in the Congress have not been willing to speak up against the president on this issue.
I am also a veteran of a harrowing legal fight to protect my sources, including facing jail and fines. I also know how much time it takes away from one's reporting and oversight role. Risen agreed; he said this long legal slog has taken up time that he would have been using to continue to examine the national security agencies, and he believes that the continuing pressure for him to testify is part of a chilling effect on his watchdog work.
He said he sees this struggle, however, as a mixed bag, because he believes that in a strange way, it has been good for him as he works with other sources. He said that people that work with him now on stories know that he will fight to protect them from exposure. He also said that, for the most part, the journalism community has been very supportive of his fight to protect reporter rights. Risen is resolute on his stand and said, "I believe that there is a reporter's privilege and I think that the government should recognize its existence."
But what if he loses - if the Supreme Court refuses the case and lets the lower court decision stand, or if they take the case and rule that he must testify, and the courts establish there is no reporter privilege? He does admit that, if he loses, it will be up to the court judge to decide if he will be forced to testify. He is still determined to protect his sources. "If I have to go to jail, I will," he said.
The Prospect of a Federal Shield Law
I then asked him about reporters protecting their sources beyond his specific case, and whether he thinks that a legislative solution, such as a federal shield law for reporters, would be a better path than hoping that the Supreme Court rules in favor of journalists. There are several potential federal shield bills rolling around in the Congress, but Risen believes that they have flaws for national security reporters. He said:
The problem with the proposed legislation is that it carves out a huge loophole for national security reporting. But that is the area where most leak investigations occur, and so the shield law would not accomplish much. In fact, it might have the unintended consequence of giving the government the power to determine what journalism deserves protection under the shield law, and what does not, thus creating a de facto Official Secrets Act.
Some others in journalism don't agree that the federal shield law is a weaker protection than what might come out of the courts. In a story by Jeff Zalesin from the Reporters Committee for Freedom of the Press, there were media attorneys who thought that legislation would be a more consistent way to protect reporters and their sources:
Although there is no guarantee that Risen could have taken advantage of a federal shield law, Congress should pass one to establish that the reporter's privilege exists in federal court, said Sophia Cope, a government affairs expert with NAA.
"This decision shows that there continues to be a large difference between the jurisprudence of the various circuits across the country," she said. "We really need one federal statute to set forth clear and consistent rules across all federal jurisdictions."
Los Angeles-based media lawyer Jean-Paul Jassy agreed, adding that Congress should use shield legislation to clarify a point of constitutional law.
"The reporter's privilege derives from the First Amendment, and the First Amendment should offer that protection nationwide," he said.
Steven Aftergood, who runs the Project on Government Secrecy for the Federation of American Scientists, believes that both sides, the government and the media, pushed the envelope and caused this major standoff between them. He told me that it is "not widely recognized that the letter of the law is not uniformly favorable to reporters and their sources" and "publishers could be guilty of a felony" in publishing classified information.
Aftergood has been following the national security community for decades. He believes that the current climate evolved in the community because of the massive leaks that have happened in this administration pushed the national security agencies to overreact. He said that one of the unfortunate results of this standoff is that there are new policies on internal surveillance of their employees and contractors and a heightened paranoia in many of the national security agencies. He said that the intimidation factor in these agencies might greatly increase because, ever since the Wikileaks document release, agencies are putting in new polygraph requirements of asking employees if they had "contacts with the press."
Aftergood wonders where the "adult supervision" is in this fight and believes that both sides need to show restraint. He does believe that the Risen case is an interesting one because Risen has so much at stake but thinks that the administration has so much more to lose. The political and public perception is at stake, and he cannot imagine that the Obama administration would keep pushing for Risen to testify if it meant that Risen would go to jail. If Obama keeps on this path of going after national security whistleblowers and reporters with this same zeal, he is going to "acquire his own Nixonian aura."
Aftergood agrees with Risen that a federal shield law for reporters could not be crafted successfully to protect reporters and their sources because of the criminal statutes against leaking classified material. He doesn't see how the legislature could get around the national security laws as they stand now. He said, when it comes to national security, both sides need to make sure that they don't trigger drastic laws or actions that could hurt reporters and the national security community, and both sides should " keep their swords sheathed."
"Espionage" and Oversight
I have a long-time source who has worked with the Obama administration on government transparency and national security. I asked my source why Obama allowed this situation on national security whistleblowers to go so far and have so many Espionage Act cases. It is not well known that Obama, after he became an attorney in Chicago, worked with a qui tam False Claims Act attorney that I knew doing appeal work based on the whistleblower protection of that law.
My source pointed out that Obama sees national security leaks as dangerous for ongoing military operations and sees whistleblower activity in other government areas as more legitimate because they are exposing fraud and waste. He thinks that Obama came into this situation as a civil rights attorney and was not well schooled in the daunting area of national security during wars and terrorism. Basically, the source claims that Obama was out of his league in this area and was susceptible to pressure from the national security agencies to do something big on the embarrassing leaks.
The outcry by the media to the Obama administration's secret reviews of reporters' phone and bank records caused Obama to have Attorney General Eric Holder to draw up new rules. According to a New York Times story in July 2013:
In a six-page report, Mr. Holder outlined changes to the Justice Department's investigative guidelines that would prevent the Federal Bureau of Investigation from portraying a reporter as a coconspirator in a criminal leak as a way to get around a legal bar on secret search warrants for reporting materials.
The revisions would also make it harder - though not impossible - for prosecutors to obtain a journalist's records from telephone companies without advance notice. The notifications would give the news organizations a chance to contest the request in court.
However, there was still the exception on national security that Risen and Aftergood worry about. From The New York Times article:
The guidelines cover grand jury subpoenas used in criminal investigations. There is no change to how the F.B.I. may obtain reporters' calling records via "national security letters," which are exempt from the regular guidelines. A Justice spokesman said the device is "subject to an extensive oversight regime."
Due to Obama's continued pursuit of these national security whistleblowers using the Espionage Act, you have to wonder how well an extensive oversight regime will be pursued by national security agency heads who are conscientious objectors to reporter oversight of their work.
So what is the solution for reporters to protect their sources? The national security loophole does make any federal shield law weak; national security reporting requires some of the most important protection for reporters' sources. The courts could totally deny reporters' declared First Amendment right to not reveal their source. The national security loophole would be a hard fix because of the existing use of severe criminal charges for leaking classified documents. There is little political interest in softening those security laws in the current climate. Also, any attempt at making a new shield law could backfire as unsympathetic politicians could place a poison pill in a bill to control the power of the press, while claiming to help press freedoms. The Risen case needs to play itself out to see if the courts give reporters a remedy for their dilemma or to see if other actions or cases are needed to protect what has been assumed by reporters for years: their right to protect confidential sources.
Meanwhile, James Risen and the rest of journalism wait to hear his fate and the fate of journalists' ability to protect sources while watchdogging the federal government.