The New York Times, June 28, 2014,
By JONATHAN MAHLER
Attorney General Eric H. Holder Jr. has said, “As long as
I’m attorney general, no reporter who is doing his job is going to go to jail.
On Dec. 31, 2005,
the C.I.A.’s acting general counsel, John A. Rizzo, received an urgent phone
call from the White House about a chapter in James Risen’s coming book, “State
of War,” detailing a botched C.I.A. operation in Iran.
The
administration wanted Mr. Rizzo to contact Sumner Redstone — the chairman of
Viacom, owner of the book’s publisher, Simon & Schuster — and ask him to
keep the book off the market.
Mr. Rizzo never
made the call. It was too late. Copies of “State of War” had already reached
bookstores.
The Bush
administration soon identified the man it believed was responsible for leaking
the information in the book, and in 2008 it subpoenaed Mr. Risen, a reporter
for The New York Times, to identify his source.
After more than
six years of legal wrangling, the case — the most serious confrontation between
the government and the press in recent history — will reach a head in the
coming weeks. Mr. Risen has steadfastly refused to testify. But he is now out
of challenges. Early this month, the Supreme Court declined to review his case,
a decision that allows prosecutors to compel his testimony. If Mr. Risen
resists, he could go to prison.
Though the
court’s decision looked like a major victory for the government, it has forced
the Obama administration to confront a hard choice. Should it demand Mr.
Risen’s testimony and be responsible for a reporter’s being sent to jail? Or
reverse course and stand down, losing credibility with an intelligence
community that has pushed for the aggressive prosecution of leaks?
The dilemma comes
at a critical moment for an administration that has struggled to find a balance
between aggressively enforcing laws against leaking and demonstrating concern
for civil liberties and government transparency. Whatever the Justice
Department chooses to do will send a powerful message about how far it is
willing to go to protect classified information in the digital age. And
journalists and press freedom activists are watching closely for the precedent
the decision will most likely set.
“If the
government proceeds and pursues the subpoena, especially if Mr. Risen goes to
jail or is fined at some intolerable level, it will deal a withering blow to
reporting that runs against the government’s wishes,” said Steven Aftergood,
who studies government secrecy for the nonprofit Federation of American
Scientists.
Arguments over
the First Amendment can be esoteric, but the specter of a reporter’s going to
jail adds an element of personal consequence and real-world drama to the
debate. The last reporter to be sent to prison for refusing to disclose a
source was Judith Miller in 2005; then a reporter for The Times, Ms. Miller
served 85 days in jail for initially refusing to testify in a case involving
the disclosure of a covert C.I.A. operative.
Several weeks
ago, Attorney General Eric H. Holder Jr. hinted that prosecutors might not seek
to imprison Mr. Risen if he defies his subpoena, though Mr. Holder’s statement
was by no means definitive. “As long as I’m attorney general, no reporter who
is doing his job is going to go to jail,” he said in a meeting with a group of
journalists.
On the advice of
his lawyer, Mr. Risen, 59, declined to comment for this article. But during a
speech in February in Boston, he said he had two choices: “Give up everything I
believe in — or go to jail.”
Mr. Risen’s legal
travails have played out against the backdrop of WikiLeaks and Edward J.
Snowden, intensifying the debate over the disclosure of national security
secrets. Defenders of press freedom argue that unsanctioned leaks help hold
administrations accountable for their actions, and that reporters depend on
confidential sources to get important information to the public. Critics of
these leaks say they are not only illegal but also can jeopardize the
government’s ability to keep the public safe.
President Obama
has found himself at the center of this debate. After he entered office
celebrating whistle-blowing as an act of “courage and patriotism,” his
administration has prosecuted eight government employees for leaking classified
information — more than all previous administrations combined.
During the course
of leak investigations, the government has largely avoided courtroom showdowns
with reporters. But two cases that surfaced last year prompted outrage among
journalists. In one, the Justice Department obtained Associated Press phone
records; in the other, an F.B.I. agent labeled a Fox News reporter, James
Rosen, a criminal co-conspirator in a search warrant for his email.
In response to
the uproar, the administration has revised Justice Department regulations to
offer reporters more protection from government investigators.
David Pozen, an
associate law professor at Columbia University who studies leaks, said the
government’s next move in Mr. Risen’s case could signal a tipping point in how
it pursues these prosecutions. “If they let Risen go,” Mr. Pozen said, “it
would suggest that however else they try to bring these criminal-leak cases
going forward, journalists will largely be shielded.”
The failed C.I.A.
action at the heart of Mr. Risen’s reporting was intended to sabotage Iran’s
nuclear weapons program. Intelligence officials assigned a former Russian
scientist who had defected to the United States to deliver a set of faulty
blueprints for a nuclear device to an Iranian scientist. But the Russian
scientist became nervous and informed the Iranians that the plans were flawed.
The Times
considered publishing an article about the operation in 2003, when Mr. Risen
first learned about it, but President George W. Bush’s national security
adviser, Condoleezza Rice, prevailed upon the newspaper to withhold publication
for the sake of national security.
“We weighed the
government’s concerns and the usual editorial considerations and decided not to
run the story at that time,” said a spokeswoman for The Times, Danielle Rhoades
Ha.
Mr. Risen broke
the story a few years later in his book. In the intervening period, it had come
to light that the administration had built its case for going to war in Iraq on
the basis of faulty intelligence about the country’s nuclear weapons program.
There was also growing speculation that the United States might be planning for
a possible conflict in Iran.
As Mr. Risen
wrote in one legal filing, “The competence of intelligence operations
concerning Iran’s nuclear capabilities was something that the public needed to
examine.”
The C.I.A. refers
possible leak cases to the Justice Department on an almost weekly basis. A vast
majority are never investigated. According to Mr. Rizzo, though, relatively few
people possessed Mr. Risen’s detailed knowledge of the Iran operation.
The government
quickly zeroed in on a disgruntled former C.I.A. agent, Jeffrey Sterling. In
2010, federal prosecutors charged Mr. Sterling with disclosing classified
information to a reporter. His trial was scheduled to begin in 2011 in Federal
District Court in Alexandria, Va., but the fight over Mr. Risen’s testimony has
delayed the proceedings.
When the Bush
administration first subpoenaed Mr. Risen in early 2008, he was already well
known inside the White House. He was one of two reporters for The Times who in
2005 broke the news that Mr. Bush’s government had conducted warrantless
wiretapping of American citizens. Mr. Bush described the reporting on the
wiretapping program as “shameful.” Nevertheless, the revelations led to greater
judicial oversight of electronic eavesdropping.
The Obama
administration has also tried to force Mr. Risen to disclose how he learned the
information in his book. Mr. Risen has received two additional subpoenas, one
to testify before a grand jury, the other to testify at Mr. Sterling’s trial.
After a trial
court judge largely quashed his third subpoena in late 2010, the Justice
Department successfully challenged the ruling in a federal appeals court,
arguing that the First Amendment does not afford any special protections to
journalists. The administration then urged the Supreme Court not to review Mr.
Risen’s case.
“I was surprised
that the Obama administration continued to pursue the notion of Risen
testifying,” said Mr. Rizzo, who recently published a memoir about his years in
the C.I.A. in which he devoted several pages to the controversy surrounding Mr.
Risen’s book. “They were declassifying torture memos. There was going to be
transparency. It was a new leaf they were going to turn over.”
Defenders of the
government’s war on leaks argue that advances in technology and the expansion
of the intelligence bureaucracy since the Sept. 11 terrorist attacks have made
heightened vigilance necessary. Daniel Ellsberg had to photocopy the Pentagon
Papers one page at a time; Mr. Snowden was able to access hundreds of thousands
of highly classified documents on the National Security Agency’s computer
networks. As of 2011, more than 4.2 million people both inside and outside the
government held security clearances.
“It’s kind of a
small response to a giant problem,” Jack Goldsmith, a Harvard law professor who
was a senior Justice Department official in the Bush administration, said of
the Obama administration’s leak cases. “These prosecutions are the responses of
a bureaucracy that’s at its wits’ end at how to deal with all of these leaks.”
Activists for
freedom of the press have been encouraged by some of the White House’s recent
actions and talk. In May last year, Mr. Obama described leaks as dangerous but
said he was “troubled by the possibility that leak investigations may chill the
investigative journalism that holds government accountable.”
The president has
also expressed support for legislation — a so-called shield law — that
guarantees certain protections for journalists, but would contain exceptions
related to national security.
For now, the
administration faces a more pressing issue: What to do about Mr. Risen?
The government is
expected to resume its case soon against Mr. Sterling. If Mr. Risen refuses to
testify, the Justice Department has options beyond seeking a prison sentence.
It could ask the judge to fine Mr. Risen. Or it could agree to narrow the scope
of questioning so that he would not be asked to identify his source.
Government
lawyers could also try to avoid the issue altogether by pursuing a plea
agreement with Mr. Sterling.
“The prosecutors
who have invested so much in this probably want to charge ahead,” said Mr.
Aftergood of the Federation of American Scientists. “It’s just a question of
whether politics will put some brakes on them.”