It’s a fairly basic constitutional issue for the press, whether or not there is a reporter’s privilege. It’s something a lot of people outside the press don’t really understand, don’t really care about. I think the basic issue is whether you can have a democracy without aggressive investigative reporting and I don’t believe you can. So that’s why I’m fighting it.
James Risen, reporter, New York Times, in a talk at the National Press Club. 'Reporter's Privilege' Under Fire From Obama Administration Amid Broader War On Leaks.
Background: The Obama Justice Department continues its attempts to force Risen to testify against CIA agent Jeffrey Sterling by arguing that Reporters’ Privilege does not exist when the information revealed is considered illegal.
In this case, the CIA’s Sterling is charged with leaking classified information about a plot against the Iranian government that Risen then used in his book, State of War: The Secret History of the CIA and the Bush Administration.
Via the Huffington Post:
While the Obama administration hasn’t prosecuted those responsible for torture during the Bush years, it is taking a strong stand against a former official believed to have supplied information to the media about use of torture and other controversial tactics during the previous administration.
In January, the Justice Department charged former CIA officer John Kiriakou with disclosing classified information to the media; The FBI claims to have evidence linking him to a 2008 New York Times story detailing the interrogation of Abu Zubaydah.
In another notable case, the DOJ charged Thomas Drake under the Espionage Act, claiming the former National Security Agency official provided classified information of gross NSA mismanagement to a Baltimore Sun reporter. The government’s case collapsed in 2011 and Drake pleaded guilty only to a misdemeanor.
The crackdown hasn’t gone unnoticed among reporters, with tension recently spilling out into the White House briefing room after the administration praised Anthony Shadid and Marie Colvin, journalists who died while covering the bloody conflict in Syria.
Jake Tapper, the senior White House correspondent for ABC News, asked White House Press Secretary Jay Carney how public support of those journalists’ work “square[s] with the fact that this administration has been so aggressively trying to stop aggressive journalism in the United States by using the Espionage Act to take whistleblowers to court.”
"There just seems to be a disconnect here," Tapper added. "You want aggressive journalism abroad; you just don’t want it in the United States."
A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook
Leonie Brinkema, US Federal Judge. United States of America v. Jeffrey Alexander Sterling.
In a case involving an ex-CIA agent accused of revealing classified national security information, the US government tried to force New York Times reporter James Risen to reveal his sources for his 2006 book State of War: The Secret History of the CIA and the Bush Administration (NPR review and excerpt).
Earlier this month Brinkema ruled Risen would not have to testify.
As explained by Charlie Savage in the New York Times:
The judge wrote that Mr. Risen was protected by a limited “reporter’s privilege” under the First Amendment, meaning that prosecutors had to prove that there was a compelling need for the reporter’s testimony and there that were no other means of obtaining the equivalent of that testimony. The government argued that such a privilege did not exist, but she recounted numerous other cases -– though none as high profile as the C.I.A. leak case -– in which other federal judges had invoked it.
This is an important victory for the First Amendment, and for the freedom of the press in the United States. Some people don’t seem to understand the connection between the ability of journalists to protect their confidential sources and a free press. But if whistleblowers in government, in corporations, and elsewhere in society can be hounded and persecuted, and if the Justice Department is able to use its power to turn reporters into informants, then investigative journalism in America will surely wither and die. The First Amendment will have lost its meaning.
Email from the New York Times’ James Risen to Salon’s Glenn Greenwald.
On Friday, a judge ruled that Risen would not have to testify about the identity of a source during the trial of Jeffrey Sterling, a former CIA official.
Sterling was arrested in January and is accused of leaking classified information to Risen.
Glenn Greenwald, Salon. Obama’s whistleblower war suffers two defeats.
I take very seriously my obligations as a journalist when reporting about matters that may be classified or may implicate national security concerns. I do not always publish all information that I have, even if it is newsworthy and true. If I believe that the publication of the information would cause real harm to our national security, I will not publish a piece. I have found, however, that all too frequently, the government claims that publication of certain information will harm national security, when in reality, the government’s real concern is about covering up its own wrongdoing or avoiding embarrassment…
…Any testimony I were to provide to the Government would compromise to a significant degree my ability to continue reporting as well as the ability of other journalists to do so. This is particularly true in my current line of work covering stories relating to national security, intelligence and terrorism. If I aided the Government in its effort to prosecute my confidential source(s) for providing information to me under terms of confidentiality, I would inevitably be compromising my own ability to gather news in the future. I also believe that I would be impeding all other reporters’ ability to gather and report the news in the future.