WASHINGTON, August 20, 2014 — New York Times reporter James Risen gets a little jumpy when the doorbell rings. His legal appeals to avoid revealing the identity of a source in open court have been rejected by the U.S. Supreme Court. It’s only a matter of time before the FBI comes to fetch him. He is, to repeat a tired cliché, between a rock and a hard place.
The “rock” is America’s post-9/11 security state. The “hard place” is the federal court system that sustains it.
Risen’s travails began with the publication of his 2006 book State of War, which recounts how the CIA accidentally blew the cover of its covert agents working in Iran, crippling the agency’s ability to gather information on Iran’s nuclear weapons program. Worse yet, the agency initiated Operation Merlin, in which it slipped intentionally flawed blueprints for a Russian nuclear weapon to Iran, hoping to guide them down a technological blind alley. Risen contends that Operation Merlin helped rather than hindered Iran’s quest to build a nuclear bomb.
The government is intent on knowing the identity of Risen’s CIA source.
“A lot of people still think this is some kind of game or signal of spin,” Risen told his Times colleague Maureen Dowd. “They don’t want to believe that Obama wants to crack down on the press and whistle-blowers. But he does. He’s the greatest enemy to press freedom in a generation.”
This puts his employer, the New York Times, in something of an awkward position. After all, the Times endorsed President Obama for re-election in 2012 as a counterweight to the “ideological assault from the right” that would “undermine the vital health reform law passed in 2010.” And the Times loves Obama’s “firm commitment to using government” to advance “policies that are not dedicated to protecting the powerful” but to “protect the powerless.”
The Times has yet to figure out that the same government that takes authoritarian action, like mandating the purchase of a government product (health care) and the secret interception of our private communications, and whose demagogues advocate on behalf of the “powerless,” might no longer feel bound by the constraints of the Constitution’s negative injunctions, i.e., the Bill of Rights, and in particular the First Amendment.
Last March, The New Yorker’s legal correspondent Jeffrey Toobin told journalists at the Sources and Secrets conference hosted, ironically, by the New York Times, “It won’t take me long to alienate everyone in the room. For better or worse, it has been clear there is no journalistic privilege under the First Amendment,” said Toobin.
He attempted to calm reporters, saying they should “be realistic about whether the sky is falling. The number of journalists prosecuted by [the] Obama administration under the Espionage Act is zero.”
In a New Yorker piece critical of Edward Snowden, the former NSA contractor who blew the lid off the U.S. government’s domestic spy (PRISIM) program, Toobin admonished the whistle-blower for leaking “the very court order that approved the continuation of the project; he [Snowden] was exposing something that failed to meet his own standards of propriety.”
In other words, Toobin’s disdain stems from Snowden’s disabusing Americans of the illusion that they are safe from “unreasonable searches and seizures” and that government may not abridge their “freedom of speech, or of the press.”
On December 22, 2010, three years before the Snowden revelations, U.S. Attorney Neil MacBride announced the indictment of former CIA operations officer Jeffrey Alexander Sterling, accusing him of leaking government secrets to Risen.
Sterling holds the distinction of being one of only five men charged under the Espionage Act of 1917. Toobin’s claim that no journalists have been charged under the act is disingenuous considering Risen’s predicament.
But the Sterling prosecution faces one major obstacle: To convict him, the government would have to admit that the evidence it gathered through its PRISM program, whose blanket telephone and email intercepts likely connected Jeffrey Sterling to reporter James Risen, forms the nucleus of its case.
How would it look for the government to accuse a man of domestic espionage using evidence gathered by means of, well, domestic espionage?
Our government, which we must never forget includes the courts, hopes to avoid that problem by compelling Risen to rat on Sterling.
“It’s hard to fathom how the president who started with the press fluffing his pillows has ended up trying to suffocate the press with pillows,” wrote Maureen Dowd.
The problem, Maureen and James, is much bigger than Obama.