The presidency of Hope™ and Change™ strikes again.
This time, the administration is waging war on one of the last remaining bulwarks of press freedom, the journalists right to protect sources — a critical tool for reporting on the misdeeds of the power elite.
At issue is the source for information in chapter nine of New York Times reporter James Risen’s 2006 book, State of War: The Secret History of the C.I.A. and the Bush Administration — a work much reviled by both Bush and the sppoks.
The government is vigorously prosecuting former Central Intelligence Agency officer Jeffrey Sterling under the 1917 Espionage Act for allegedly giving Risen details of a covert op designed to stymie Iran’s alleged nuclear weapons program.
Under the code name Operation Merlin, the agency dispatched a defector from the Russian nuclear program to Iran with cooked designs for a nuclear weapon. The flaws, designed to lead Iranian scientists down a dead-end road, were allegedly spotted by the Russia and pointed out to the Iranians, thwarting the operation.
So it wasn’t exactly a secret, except to the American public.
Targeting the messenger
The prosecutors established links between the reporter and the spook by monitoring their phone and email interactions. MSNBC reported last year that
prosecutors obtained Risen’s telephone, credit and bank records. They also obtained credit reports on Risen conducted by three credit agencies — Equifax, TransUnion and Experian — as well as records of his airline travel, the filing states.
But the documentary record isn’t enough for Obama’s legal bloodhounds. They want Risen’s testimony, which the reporter is refusing to give, and his attorneys cited a long chain of legal precedents to back up his position.
Still the Obama administration pushes forward, as Steven Aftergood reports for Secrecy News, a website of the Federation of American Scientists Project on Government Secrecy:
“There is no ‘reporter’s privilege’ that shields the identity of confidential sources in good-faith criminal proceedings,” prosecutors reiterated in a new pre-trial brief in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information to author and New York Times reporter James Risen. Consequently, they said, Mr. Risen should not be permitted to invoke such a privilege to shield his source.
“Risen and his amici simply do not accept that Branzburg [the 1972 Supreme Court case that appeared to preclude a reporter's privilege in criminal cases] is the law,” prosecutors told the Fourth Circuit Appeals Court in their February 28 reply brief. “Instead, they largely ignore the majority opinion in that case and rely on other sources to construct a constitutional or common law privilege. Their arguments are not persuasive and should be rejected.”
“Contrary to Risen’s claim, the ‘newsworthiness’ of the information has no bearing on whether he should be required to disclose his source,” prosecutors wrote. “The ‘newsworthiness’ of the information is irrelevant to whether Sterling committed a crime, and it is irrelevant to whether Risen, like any other citizen, must testify concerning his knowledge of that crime.”
The press responds
But a friend of the court brief [PDF] filed on behalf of Risen and in the interest of maintaining the press’s dwindling First Amendment protections argues that
every federal circuit to consider the question, including this one, has recognized such a privilege and no circuit has held otherwise. Simply put, outside the grand jury context, the federal appellate courts that have considered the matter have uniformly applied a qualified reporter’s privilege, grounded in the First Amendment and/or federal common law, that protects journalists from the compelled disclosure of their confidential sources in the context of adversarial criminal proceedings.
Represented in the amicus brief are many of the nation’s leading news media organizations as well a journalist’s alliances:
- ABC, Inc.
- Advance Publications, Inc.
- ALM Media, LLC
- The Associated Press
- Bloomberg L.P.
- Cable News Network, Inc.
- CBS Corporation
- Cox Media Group, Inc.
- Daily News, L.P.
- Dow Jones & Company, Inc.
- The E.W. Scripps Company
- First Amendment Coalition
- Fox News Network, L.L.C.
- Gannett Co., Inc.
- The Hearst Corporation
- The McClatchy Company
- National Association of Broadcasters
- National Public Radio, Inc.
- NBCUniversal Media, LLC
- The New York Times Company
- Newspaper Association of America
- The Newsweek/Daily Beast Company LLC
- Radio Television Digital News Association
- Reporters Committee for Freedom of the Press
- Reuters America LLC
- Time Inc.
- Tribune Company
- The Washington Post
We’ll close with the final argument raised in the brief:
Amici respectfully submit that an inventory of those crimes that have gone unpunished because a journalist was permitted to protect a source would be a very short list indeed, and would pale in comparison to the number of significant criminal prosecutions made possible directly as a result of news reports containing information gleaned from confidential sources. As the Supreme Court has observed, although “[t]he right to remain anonymous may be abused when it shields fraudulent conduct,” it remains the case that, “in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995).