When Will the Government Stop Trying to Send This Reporter to Jail for Telling the Truth?
If you blinked at the end of June, you may have missed one of the best pieces of journalism in 2014. The New York Times headline accompanying the story was almost criminally bland, but the content itself was extraordinary: A top manager at Blackwater, the notorious defense contractor, openly threatened to kill a US State Department official in 2007 if he continued to investigate Blackwater’s corrupt dealings in Iraq. Worse, the US government sided with Blackwater and halted the investigation. Blackwater would later go on to infamously wreak havoc in Iraq.
But what makes the story that much more remarkable is that its author, journalist James Risen, got it published amidst one the biggest legal battles over press freedom in decades – a battle that could end with the Justice Department forcing him into prison as early as this fall. It could make him the first American journalist forced into jail by the federal government since Judith Miller nearly a decade ago.
For years, the Justice Department, first under the Bush administration and now under Obama, has been aggressively pursuing Risen to testify against one of his alleged sources who is the subject of a leak prosecution. Risen’s most well-known scoop is the one that won him a Pulitzer Prize in 2006: exposing the Bush-era illegal warrantless wiretapping by the NSA, under threat of Espionage Act prosecution. But the Justice Department has been officially pursuing him about another story for years – a tale first published around the same time, in his book State of War.
In a riveting chapter that the Guardian exerpted at the time, Risen recounts the story of a spectacularly botched CIA operation wherein a Russian defector under US government control ends up essentially handing over near complete nuclear bomb blueprints to Iran. Yes, you read that right. You can read an edited version of the chapter here.
As Risen wrote in a compelling affidavit for his case, to root out his sources, the government has accessed his phone records, along with his email records, and even his credit card statements. He has been harassed for more than five years, from a Republican administration to a Democratic one for doing a single thing: vowing to protect his sources, the quintessential duty of any decent reporter.
The case has become one of the great shames of Obama’s Justice Department, which has pursued Risen with increased vigor, and in the process, done irreparable damage to the rights of every US journalist – indeed, to the rights of every American who wants to know newsworthy events which its government deliberately keeps in the shadows.
In 2012, when appealing Risen’s victory in lower court, the Justice Department argued that not only should Risen be forced to testify, but that in national security cases, reporter’s privilege – the right of journalists to keep sources confidential, like doctors do with their patients – should not exist at all. The government even compared journalists to someone receiving drugs from a dealer. As the Huffington Post reported in 2012:
[The Justice Department lawyer] said what Risen did was ‘analogous’ to a journalist receiving drugs from a confidential source, and then refusing to testify about it.
‘You think so?’ [the judge] asked, clearly unconvinced.
‘The beneficiary of the privilege is the public … the people’s right to know,’ [the judge] said. ‘We need to know what the government is doing,’ he noted. ‘The king never wants anyone to disclose.’
Despite the court’s initial skepticism, the Justice Department convinced the Fourth Circuit to eviscerate reporter’s privilege in its jurisdiction. The case will no doubt have lasting and profound consequences for the public’s right to know about the government’s national security policy, as the Fourth Circuit covers Maryland and Virginia, where many of the nation’s best national security reporters live and work.
The region is home to Ft Meade and Langley. Think of any major story involving the NSA and CIA that has broke in the past decade and it’s likely it originated within the Fourth Circuit. Bush’s warrantless wiretapping. CIA secret prisons and torture. If Edward Snowden returns to the US, his trial will likely happen in the Fourth Circuit. Now think about reporters in this Circuit being left without any semblance of legal protection, of them being called to the stand and compelled to give up their source in any leak case – which are being prosecuted at a record pace.
After the US supreme court declined to take up his case the last month, Risen has exhausted his appeals. He now awaits the Justice Department’s final decision as to whether to call him to the stand. If he refuses, as he has vowed to, he will face contempt of court, which could result in steep fines of thousands of dollars per day, or imprisonment up to 18 months.
In response to a torrent of criticism over their treatment of journalists and whistleblowers, Attorney General Eric Holder recently claimed, “As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.”
The attorney general is leaving himself of a lot of wiggle room. He’s not technically prosecuting Risen – the Justice Department is trying to force Risen to testify under threat of contempt of court. And then there’s this, reported by the Washington Post:
New York Times reporter Matt Apuzzo then asked [Deputy Attorney General James] Cole if a reporter protecting a source was considered a reporter ‘doing his job.’ Cole declined to comment.
This week, nearly 20 Pulitzer Prize winners have come to Risen’s defense, issuing stirring statements of support and calling on the Justice Department to drop its case once and for all. An additional 100,000 citizens have signed a petition calling on the Justice Department to drop its demand that he testify. At a press conference on Thursday, many of the country’s major press freedom organizations (including the one at which I work) will present the petition to the Justice Department and again call on them to drop the case.
If there’s one issue journalists can unabashedly support without fear of being labeled as “biased”, it’s cases like this that strike at the heart of their own rights as reporters.
Tell the Justice Department to live up to its pledge: Stop pursuing James Risen. Period.