James Risen would prefer not to

New York Times reporter James Risen has excellent sources in the intelligence community. If you are a disgruntled intelligence officer or official and want to preserve your anonymity while undermining a top secret program or aiding the enemies of the United States, Risen is your go-to guy. Risen’s accomplishments in this area have been overshadowed by the emergence of Edward Snowden, but Risen should not be forgotten.

We know of two valuable national security programs that Risen (writing with his colleague Eric Lichtblau) and the Times destroyed by their disclosure of them. One involved the NSA’s ability to intercept al-Qaeda related communications of terrorists operating abroad. The December 2005 Risen-Lichtblau story is available online here. I wrote about the the legal issues arising from Times’s story on this program in the Weekly Standard column “Exposure,” as did Gabriel Schoenfeld in the Commentary article “Has the New York Times violated the Espionage Act?” and subsequently in his (invaluable) book Necessary Secrets.

The second Risen story (also written with Lichtblau) that destroyed a valuable national security program disclosed our SWIFT terrorist finance tracking program. The 2006 Times story on this program is “Bank data is sifted by U.S. in secret to block terror.”

The Times’s justification for blowing these valuable program was nil. Both of these stories violated the espionage laws of the United States and damaged American national security. Unfortunately, in my view, such acts of espionage will land you a Pulitzer Prize rather than time in the clink. Risen and Lichtblau took home a Pulitzer for their treacherous work in 2006.

Risen had these and other stories on offer in State of War: The Secret History of the CIA and the Bush Administration. Risen devoted a substantial part of one chapter of the book to a story exposing an extraordinarily sensitive intelligence operation (a “special access program,” beyond top secret) directed at Iran’s nuclear weapons program.

Let me add here that the formidable Mr. Scnhoenfeld returned in the pages of the Weekly Standard to take a look at the subpoena issued to Risen in connection with this chapter of Risen’s book. Schoenfeld’s article is “Not every leak is fit to print.” It is a shocking article that warrants the attention of serious readers. (Gabe followed up with a 2010 update here.)

In short, the Bush administration initiated an investigation of the leak. A likely suspect was identified and charges brought in 2011 by Obama’s Department of Justice. The CIA officer turned out to be an operative fired in 2002, one Jeffrey Alexander Sterling. Risen wrote about Sterling’s termination from the CIA here. The Times reported on the indictment handed up against Sterling here.

The government has sought Risen’s testimony in its prosecution of Sterling. Risen has demurred, taking his claim of privilege all the way to the Supreme Court, which only recently declined to hear it. Risen remains under subpoena to testify and the government’s prosecution of Sterling awaits his testimony. I think he should be in the dock beside Sterling as his co-conspirator, but the government only seeks his testimony.

Now what? The Times updates the matter in Jonathan Mahler’s story “Reporter’s case poses dilemma for Justice Department.” Mahler’s story is notable for its omission of the national security considerations in the exposure of the special-access program that Sterling and Risen publicized. For that, see Schoenfeld’s Weekly Standard article.

What’s the dilemma to which the Times headline refers? It seems to be a choice between political considerations and legal considerations. The Obama administration isn’t going to put Risen to the choice of testifying like an ordinary citizen or cooling his heels in prison, is it? Mahler’s plea to Eric Holder virtually leaps off page one, where the Times placed it yesterday. You can all but hear Mahler shrieking at Holder: What are you thinking? We’re on the same team!

I would guess not. The New York Times represents the diehard drinkers of Obama’s Kool-Aid — not just Times readers, of course, but Times reporters and editors too. Risen will not in any event testify unless his source excuses him from his commitment to keep his identity confidential, which is not likely to happen. Interested observers will want to keep an eye on developments here.

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