Fighting the Sunlight: The James Risen Case in Context

When Noam Chomsky asked the audience at his June 3 talk in Prague to imagine that there was a free press, laughter erupted throughout the filled auditorium. Why? Because those who think about the theory versus the practice of free speech recognize its fundamental contradictions.

A most recent case in point: On June 2 the U.S. Supreme Court rejected New York Times national security reporter James Risen's appeal of the 4^th Circuit ruling that the government can compel him to reveal the identity of his source. This has been widely deplored as a blow to free speech. In fact, it is a blessing that the Supremes declined to rule on the merits of the case - for if they had they would likely have ruled that subpoenaed reporters are not privileged from having to disclose the identity of their confidential sources, thus setting back press rights by settling the jurisdictional split on the issue ever since The Court's 1972 Branzburg v. Hayes ruling. This underscores the manner in which the powers of the state are aligned against a free press.

Of course, theory holds that a free and independent press is vital to a democratic society, as the watchdog disclosing information on matters of public concern to the citizens. James Risen is very good at that - having won two Pulitzer prizes for his investigative reporting on dubious acts taken in the name of national security. In 2006 he won the Pulitzer for unveiling the NSA's warrantless domestic spying activities, and his ongoing reporting on government spying may win him another Pulitzer. And therein lays the problem - those who hold the reins of power in government do not tolerate their national security trump card being exposed as a fraud. Risen is one of many courageous muckraking reporters who have held firm to the principle that a journalist must maintain his pledge to conceal the identity of his sources in order to serve the public; Sunlight being the best disinfectant. But Risen confronts an attack on the free press which is unprecedented.

As Trevor Timm, co-founder and executive director of the Freedom of the Press Foundation wrote on June 2: "This is the latest victory of the Obama administration in their crackdown on sources, and in turn, investigative journalism. ...Make no mistake, this case is a direct attack on the press. The Justice Department has recently tightened its 'guidelines' for subpoenaing reporters and the Obama administration claims it supports a tepid journalist shield law, but this was the case where they could have shown they meant what they said about protecting journalists' rights. Instead, they argued to the court that reporter's privilege does not exist all. By going after Risen, the Obama administration has done more damage to reporter's privilege than any other case in forty years."

In what critics call its War on Journalism, the Obama administration has pursued leaks aggressively, bringing criminal charges in eight cases, compared with three under all previous administrations combined. It has also denigrated First Amendment jurisprudence by threatening journalists with criminal prosecution, including under the Espionage Act (a capital offense), for using leaked information. Raids of press offices and confiscation of reporters' computers and notebooks have also occurred, revealing the divide between words and deeds.

The Fourth Circuit's 2-1 ruling which the Supremes let stand, overturned the Virginia trial court verdict ruling that Risen was protected by a reporter's privilege and could not be compelled to reveal the identity of his source for his 2006 book State of War: The Secret History of the CIA and the Bush Administration which told of a bungled CIA effort in 2000 to undermine Iran's nuclear program.

Why is it so important? The 4^th Circuit has appellate jurisdiction over the district courts in Virginia and Maryland, which is where the CIA and NSA are headquartered and where many national security reporters live and work. By eviscerating the privilege there, the government has made national security reporting that much harder at a time when other tactics such as mass surveillance are being used to scare off journalists' sources. In fact, the Risen subpoena may be one of the last seen, as Big Brother will no longer even need to ask the reporter - as it will already know the source of the leak via its own snooping.

As the Reporters Committee for Freedom of the Press stated, "If the government continues to prosecute leaks, it is likely that the 4^th Circuit will be the epicenter of those cases" and it now seems that "there is little to no protection for journalists who are asked to testify in criminal cases." RCFP said it was "extremely disappointed" in the Supremes action calling journalists' ability to protect confidential sources "an essential tool utilized by a free press in newsgathering for public trust."

Think about the power of the prosecutors in the Risen case. His book was published in January 2006. A grand jury began investigating the disclosures in the book in March 2006. In January 2008, the government subpoenaed Risen before a grand jury, which issued an indictment in 2010. In May 2011 a trial subpoena for Risen was issued. Risen has been fighting this attack on his work for more than six years. Talk about a chilling effect. Yet Risen vows to go to prison before he will reveal his source. What is so threatening about investigative reporting? The truth? Being exposed for corrupt and illegal acts?

With an executive branch on the attack against the press (in service of the national security state), a corrupted dysfunctional legislature unlikely to act, and a conservative judiciary seemingly unwilling to protect the free press, it is clear that courageous journalists like Mr. Risen are needed now more than ever. His fight is ours as well.