GABRIEL SCHOENFELD: A PRIVILEGED PRESS?
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Why James Risen may be headed for jail.
After nearly four years of procedural delay, the trial of former CIA officer Jeffrey Sterling is set to open shortly. Sterling was indicted at the end of 2010 for leaking information about a top-secret CIA operation to James Risen of the New York Times in violation of the espionage statutes. It is difficult to regard Sterling as in any sense a whistleblower, though, predictably, he calls himself such. He appears to have given Risen CIA secrets as a way to settle scores with the agency in a dispute over the presence of classified information in memoirs he sought to publish and also for being the victim of what, following a poor performance review, he claimed was racial bias.
The trouble all began in August 2000, when Sterling, who is African-American, filed a racial-discrimination complaint against the CIA that the spy agency’s equal-employment office found had no foundation. A year later, Sterling filed a suit against the CIA based on the same complaint. In the weeks after 9/11, Sterling demanded a cash settlement, which the CIA declined to provide. Over the course of the next two years, Sterling put forward additional settlement demands, with the final one totaling $200,000 to be accompanied by a favorable employment recommendation. When that too was refused, Sterling filed a second lawsuit regarding CIA restrictions on his unpublished memoir. He also allegedly began funneling top-secret information to James Risen. Both of Sterling’s lawsuits were eventually dismissed by the courts.
The leaked information in question concerns Operation Merlin, a plan to pass along faulty blueprints of the trigger of a nuclear bomb to Iranian nuclear scientists. If Risen’s reporting is to be credited—and there is reason not to credit some of its most important details, as I noted in “Not Every Leak Is Fit to Print” (in the February 18, 2008, issue of this magazine)—subtle errors in the drawings were intended to derail the progress of Iran’s bomb-making effort. CIA director George Tenet and national security adviser Condoleezza Rice warned Times higher-ups that information in Risen’s proposed story would not only compromise the U.S. ability to collect intelligence about Iran, but might also lead to violent reprisal against and even the death of an individual that the CIA has identified only as “human asset No. 1.”
Editors at the Times listened to the CIA’s caution and weighed it against the news value of the story. This became one of the exceptional occasions in which the editors of the paper heeded the government’s warning. The Times spiked Risen’s story. But that was not the end of it. Risen turned around, did some additional reporting, and then published the secrets of Operation Merlin on his own as a chapter in his 2006 book, State of War: The Secret History of the CIA and the Bush Administration.
The prosecution in the Sterling trial intends to call Risen as a witness under subpoena and ask him to tell the jury about the source of the ultra-sensitive secret information that appears in his book. Risen, the only direct witness to Sterling’s alleged criminal acts, has vowed not to answer the question. To do so, he says, would break a promise he gave to his source. He therefore faces the possibility of being held in contempt and sent to prison, just like former New York Times reporter Judith Miller, who in 2005 spent 85 days in the Alexandria Detention Center in Virginia for refusing to testify in the Valerie Plame imbroglio.
For several years running, Risen and a gaggle of attorneys representing the Times and other media organizations have been contesting the subpoena, insisting that as a reporter Risen enjoys a testimonial privilege akin to the priest-penitent, attorney-client, and husband-wife privileges recognized in law. The courts have not agreed. In June, without comment, the Supreme Court turned away Risen’s last possible appeal. The justices evidently do not care to depart from their landmark 1972 ruling in Branzburg v. Hayes that the First Amendment confers no testimonial privilege upon journalists.
The Court acted as it did in Branzburg for a number of reasons, one of them being to protect the longstanding American tradition of defining the press in a maximally encompassing way. Thanks to the First Amendment, anyone in our country who conveys information or opinion can be considered a member of the press. The Court did not wish the federal government to get embroiled in determining who would and would not be eligible for a journalistic exemption: “Sooner or later,” Justice Byron White wrote memorably, “it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”
Of course, by any definition, James Risen is a journalist. He has published hundreds of stories in our nation’s leading newspaper and won a Pulitzer Prize. But he is also a particular kind of journalist. In grasping what is at issue in his refusal to testify, it is worth gaining an understanding of precisely what kind of newsman he is.
The New York Times prides itself on maintaining the highest professional standards. To help its reporters and editors keep themselves in good standing, it has published a code of conduct under the title Ethical Journalism: A Handbook of Values and Practices for the News and Editorial Departments. The guidebook is designed to advance the Times’s “essential interest in protecting the integrity of the newspaper.” It proclaims that the newspaper’s “greatest strength is [its] authority and reputation” and “we must do nothing that would undermine or dilute it and everything possible to enhance it.”
To pursue those ends, the handbook promulgates a number of regulations to safeguard the newspaper’s “irreplaceable good name.” It enumerates various kinds of infractions, including such obvious no-nos as using inside information to purchase stocks or establishing romantic relations with news sources. Some of the most serious strictures involve political activism, which for journalists must be disallowed in conformity with the overarching obligation to “protect the impartiality and neutrality of the Times.”
The handbook thus instructs that “no one”—not just reporters and editors, but also photographers, graphic editors, art directors, and everyone else whose work shapes the content of the paper—“may do anything that damages the Times’s reputation for strict neutrality in reporting on politics and government.” One cannot wear a campaign button or allow one’s spouse to put a political bumper sticker on the family car. When appearing on television and radio shows as guest commentators, reporters “should avoid expressing views that go beyond what they would be allowed to say in the paper.” Op-ed columnists and editorial writers are given more leeway “because their business is expressing opinions,” but for reporters “these restrictions protect the heart of our mission as journalists.”
That is the theory, at least. As Risen’s case illustrates, practice is often something else. Risen has built his reportorial career out of revealing the U.S. government’s most sensitive intelligence secrets. But he has a separate yet related career as a left-wing polemicist. His editors may tone him down in the pages of the New York Times, but in the pages of his own publications, like State of War, he does not hew to the newspaper’s demand for “strict neutrality in reporting on politics and government.” Much of that book is a diatribe against the Bush administration for embarking on what he calls a “radical departure from the centrist traditions of U.S. foreign policy.”
The book opens with the assertion that President Bush, under the influence of “a cadre of neoconservative ideologues,” drifted to right-wing extremes. He “allowed radical decisions to take effect rapidly with minimal review.” His Middle East policy amounted to nothing more than an “enormous gamble” with American interests “and with the lives of American soldiers.” The administration repeatedly engaged in “outrageous operations.” Moderate State Department officials were “stunned” time and again by the audacity of the “hardliners.” And so on and so forth.
Risen—it is not a closely held secret—is a partisan in our country’s partisan wars. That is all fine and good; he is free to express his opinions and the country thrives on uninhibited, robust, and wide-open debate. The New York Times, by the same token, is free to allow its reporter to violate its own guidelines without consequence. Our newspaper of record’s pretense of “impartiality and neutrality” has long since gone from being the “heart of its mission” to being the stuff of farce. With all the self-praise that the unnamed authors of the Ethical Journalism handbook piously heap upon the Times for irreproachable integrity and scrupulous observance of the “highest possible standards,” the document resembles nothing so much as the old Soviet constitution, full of wonderfully humane provisions, all for show.
The handbook contains a section instructing journalists that they “must obey the law in the pursuit of news.” It enumerates a number of specific crimes from which they are especially enjoined, like tapping telephones or stealing data, and it concludes with the categorical command that “they may not commit illegal acts of any sort.” Of course, it was perfectly legal for Risen to publish information in his book that endangered the life of the CIA’s “human asset No. 1” while also compromising intelligence sources and methods. But it is striking that at no juncture did the editors of the New York Times exhibit any evidence that they were perturbed by the fact that their employee acted in a fashion that they themselves, as a responsible news organization, deemed injurious to their country.
If all that was perfectly legal, it is perfectly illegal to refuse to testify in response to a valid subpoena. Risen and his colleagues may disagree with the law that commands such testimony, and they were fully within their rights to challenge it in the courts on First Amendment and other grounds, as they have done. But those challenges failed. The law is clear and it remains in force. It is thus one thing for Risen to fail to comply with his employer’s meaningless ethics handbook. It is another for him to pick and choose which laws of our country he will deign to observe and which illegal acts he will feel free to commit.
In successive sessions, Congress has considered establishing a reporter’s privilege only to reject such “shield-law” legislation. The American people have not exactly been clamoring to give a federal get-out-of-jail card to practitioners of an institution they do not hold in particular esteem. They prefer instead, it appears, to preserve a bedrock principle of Anglo-American jurisprudence, put forward in the 18th century in the classic phrase of Lord Chancellor Hardwicke (Philip Yorke), that “the public has a right to every man’s evidence.” By insisting upon a right not to testify in the Sterling case even after our nation’s highest court has turned away his appeal, Risen—pursuing his own highly partisan agenda while simultaneously endangering public safety—is placing himself above the law, a law that he and his supporters believe need only be observed by the little people.
In the Sterling case, the Obama Justice Department led by Attorney General Eric Holder—not the most hardline conservative the country has ever had serving as attorney general—is prosecuting a crime that imperiled the life of someone working undercover for our country to stop Iran from developing nuclear weapons. No one is under any obligation to make promises of eternal silence to traitors seeking to derail American intelligence as it works to avert a great danger to world peace. Nor can anyone stop a political-activist/reporter from choosing to face punishment for refusing to fulfill his obligation as a citizen to testify. In this case, he is the only individual with direct first-hand evidence of Sterling’s guilt or innocence for a serious crime. A jury charged with seeking the truth needs to hear what he has to say. Declining to testify is contempt, which is exactly the right word, for Risen is being contemptuous of both our democracy’s fundamental need for security and its duly enacted laws.
Gabriel Schoenfeld, a senior fellow at the Hudson Institute, is the author of Necessary Secrets: National Security, the Media, and the Rule of Law.
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