New Yorker: Test in Confidence
A Test of Confidence
In October, DreamWorks plans to release “The Fifth Estate,” an international thriller about WikiLeaks. The director is Bill Condon, who made two of the “Twilight” vampire movies; Benedict Cumberbatch plays Julian Assange. Sure to follow are studio imaginings of the Edward Snowden affair, which looked script-ready the minute the N.S.A. contractor surfaced in Hong Kong with a hard drive full of secrets and a baby face lined with stubble.
Assange and Snowden style themselves as philosopher-rebels in the age of Big Data, and, over all, their disclosures of state secrets have served the public interest. But the glamorization of their radicalism is a distraction. In American courthouses this summer, a vitally important, yet much more subdued, struggle over the First Amendment’s scope is taking place between the Obama Administration and the press. At issue is whether the Administration will fulfill a recent pledge to end its heavy-handed pursuit of professional journalists’ sources.
The ripest case concerns a Times reporter, James Risen. It would be polite to describe Risen, who is in his fifties, as rumpled. He is a newspaper-bred investigator with wide contacts in Washington’s intelligence community—a professional dinosaur, in other words, whose ecosystem looked shaky even before federal prosecutors bore in on him. He has co-written articles for the Times that exposed the Bush Administration’s warrantless domestic-wiretapping program; the reporting won a Pulitzer Prize.
In 2003, Risen learned of a tangled C.I.A. program, called Operation merlin, that was designed to feed faulty nuclear-weapons blueprints to Iran, in order to mislead that country’s scientists. According to court filings, George Tenet, the director of the C.I.A., and Condoleezza Rice, the national-security adviser, asked the Times not to publish Risen’s scoop, because it might endanger the life of a C.I.A. contact and harm national security. The paper’s editors acquiesced. Three years later, however, Risen described merlin in a book about the C.I.A., “State of War.” He cited confidential sources.
In 2008, Bush Administration officials opened a grand-jury investigation of Jeffrey Sterling, a former C.I.A. case officer, for being Risen’s source on Operation merlin. In 2010, the Justice Department, under Obama’s Attorney General, Eric Holder, charged Sterling with providing classified information to a journalist; Sterling pleaded innocent. Holder then endorsed a subpoena that would force Risen to reveal his sources at Sterling’s trial. Risen refused to coöperate and, with that, U.S. v. Sterling became a significant test of whether or when reporters have a right to protect confidential sources.
Initially, a federal district judge, Leonie Brinkema, issued an opinion that was favorable to Risen’s position. The Administration appealed. In 2012, despite pleas for restraint from major news organizations—including both the Times and Fox News—Holder approved an appellate brief that marked a low point in recent First Amendment litigation. It rejected any notion of a reporter’s constitutional privilege to protect sources in criminal proceedings. It dismissed the idea that reporting like Risen’s might be justified because it serves the public interest. And it described a working reporter who hears classified information during an interview with a government official as a witness to a crime, under the Espionage Act of 1917—no different under criminal law from a witness to a murder.
The brief was a plank in a wider Administration campaign to deter leakers in national-security cases by punishing them harshly and by acting aggressively to identify journalists’ sources. Holder has approved more media-leak prosecutions than all previous Attorneys General combined. This spring, however, after it was revealed that the Justice Department had secretly seized phone records of Associated Press reporters and editors, as well as those of the Fox reporter James Rosen, the Administration backed down, and, on July 12th, Holder vowed to change how Justice would treat journalists in criminal cases.
His revisions, if implemented, could go a long way toward addressing the misguided practices of Obama’s first term. Among other things, Holder said that he would create a committee, including in-house advocates for privacy and civil liberties, to review subpoenas like the one issued to Risen. Yet the changes came too late for Holder to withdraw his poorly considered appellate argument in U.S. v. Sterling. On July 19th, a divided panel at the United States Court of Appeal for the Fourth Circuit, in Richmond, followed that brief’s urgings and ruled against Risen. The panel eviscerated his claim to a constitutional right to protect confidential sources, and ruled that he must testify at Sterling’s trial or face prison for contempt of court.
Risen’s lawyers have asked the Attorney General to reconsider. In essence, they are asking the new Holder to overrule the old Holder. It would be unusual for any Attorney General to countermand legal arguments in the midst of a three-year-old criminal case. But it would also be, in this instance, the right decision. Holder cannot undo the Fourth Circuit’s recent ruling, but he can contain its damage by withdrawing the subpoena that would force Risen to testify or go to jail. More broadly, in the Administration’s preferred vernacular, Holder can “reset” his legacy on First Amendment issues.
Risen has said that if he loses his courtroom arguments he will enter prison peaceably. It is Risen’s attitude toward jail time that distinguishes him from Assange and Snowden, each of whom declined to place personal liberty at risk in an American courtroom. Snowden has accepted refuge in authoritarian Russia. Assange has won asylum in the London embassy of Ecuador, whose press laws are illiberal. Last week, Bradley Manning, the young source whose leaks helped to burnish Assange’s global reputation, received a thirty-five-year prison sentence from a military judge. “I only wanted to help people,” Manning wrote in a letter to the President. “I will serve my time knowing that sometimes you have to pay a heavy price to live in a free society.”
Risen is hardly an activist, but his willingness to expose bad American law by accepting whatever punishments the law metes out is aligned with the disobedience strategies of the civil-rights campaigns of the nation’s past. Surely the Attorney General can accept the honor of capitulating to such a strategy in this case. If nothing else, Holder would demonstrate to the world that the Obama Administration perceives the difference between a professional reporter’s dissenting acceptance of the rule of law and the rejection, by Assange and Snowden, of American law’s essential reliability.