Send this reporter to jail

Is New York Times reporter James Risen a law unto himself? When the Times published its December 2005 exposé of the secret National Security Agency electronic surveillance of al Qaeda-related communications, reporters James Risen and Eric Lichtblau noted that they had granted anonymity to the “nearly a dozen current and former officials” who were the sources for the story.
Risen and Lichtblau stated that they had granted these sources anonymity “because of the classified nature of the program.” Implicit in the Times’s rationale was the recognition that leaks of such classified information are illegal, as indeed they are. They violate the espionage laws of the United States.
Risen and Lichtblau got away with blowing the NSA terrorist surveillance program, and in 2006 they struck again. This time they blew the SWIFT program used by the Treasury to track terrorist financing. They got away with it this time too.
Earlier this week Garbriel Schoenfeld wondered whether the revelation of these programs facilitated the attempted terrorist attack in Times Square this past weekend. He didn’t answer the question, but he provided ground for tentatively concluding that it did.
Schoenfeld now turns his attention to the Justice Department’s reissuance of a subpoena to Risen. The subpoena demands that Risen cough up the identity of the anonymous sources who provided him with the ultra-sensitive CIA secrets Risen wrote about in the ninth chapter of his State of War.
Why, Shoenfeld asks, has Attorney General Eric Holder, not exactly a hardliner in our secrecy wars, taken the rare step of issuing a subpoena to a journalist? The leaks in issue must have been highly damaging, but so were the leaks involved in Risen’s blowing of the NSA surveillance and SWIFT tracking programs. Schoenfeld observes that the Times itself did not publish the highly classified intelligence information Risen blew in chapter 9 of his book.
Risen resists enforcement of the subpoena and promises to preserve the confidentiality he promised to his sources. Schoenfeld argues in conclusion:

James Risen has an obligation as a citizen to tell a grand jury who provided him with classified information that may have severely damaged our ability to deal with Iran’s nuclear program. This obligation has not deterred voices in and around the press from justifying both the leaking and the publishing of the leaked materials. Risen himself calls his anonymous sources “heroes.” Others, striking a tone of outrage, profess to see no public purpose served by government secrecy in this critical realm: “The message [the Obama administration is sending] to everyone is, ‘You leak to the media, we will get you,’ ” is what Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, complained to The Washington Post. “We had thought that the Obama administration would be different,” writes Times columnist Nicholas Kristof, “a little less likely to want to menace and jail journalists… I find this utterly disappointing.”
But what is utterly disappointing–yet not in the least surprising if one is familiar with the exalted status members of the press like to confer on themselves–is not the subpoena issued to Risen. Rather, it is the assumption held by Nicholas Kristof and many others in the news business that journalists are exempt from the fundamental obligations of citizenship. If James Risen keeps his silence and is held in contempt of court and then sent to jail, that will certainly provoke howls of outrage in the press. It will also be a just outcome, for no one is above the law.

I would go one step further, arguing for Risen’s liability under the espionage laws themselves, or so I argued in the Weekly Standard column “Exposure.” (Schoenfeld takes up these issues in his forthcoming book Necessary Secrets: National Security, the Media, and the Rule of Law, about which we will have more in due course.) It is sufficient unto the day, however, that the Daily Beast has run Schoenfeld’s excellent column with the fitting headline “Send this reporter to jail.”
UPDATE: I posted Schoenfeld’s additional thoughts on Risen and the attempted Times Square bombing here.

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