The Risen Heist

Last night CBS’s 60 Minutes broadcast a segment presenting New York Times reporter James Risen as a martyr and a hero. Lesley Stahl’s report on Risen is posted here.. The video is below.

Should journalists be free to choose which laws they are required to observe and which ones they can break at will? That, essentially, is what Risen is demanding as the trial of alleged CIA leaker Jeffrey Sterling draws near. Risen is under subpoena to testify as a prosecution witness at trial. Risen vows to refuse to answer relevant questions he would be asked by the prosecution pursuant to the subpoena.

Risen has unsuccessfully pursued his claim of privilege through the federal courts up to the Supreme Court. The lawfulness of the subpoena has been upheld, yet Risen promises noncompliance. Stahl and 60 Minutes present Risen as a proponent of the rule of law. It is impossible to understand the deadly serious issues that Risen’s case raises from the 60 Minutes report.

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 programs 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 also followed up with a 2010 update here and another one this year 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 and the related proceedings involving Risen in Jonathan Mahler’s story “Reporter’s case poses dilemma for Justice Department.”

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. The Fourth Circuit has rejected Risen’s claim and the Supreme Court denied Risen’s petition for review. Risen remains under subpoena to testify and the government’s prosecution of Sterling awaits his testimony. I think he should be in the dock with Sterling as his co-conspirator, but the government only seeks his testimony.

Stahl talks lazily about the public’s right to know weighing on Risen’s side of the argument. Under the espionage laws of the United States, however, the public has a right not to know critical national security matters because secrecy is the only way we can prevent our mortal enemies from learning them. Duly enacted federal law reflects the public’s right not to know. I don’t want to blow any circuits in Lesley Stahl’s cranium, but I wonder what she thinks we are to make of this.

Is this too subtle for 60 Minutes to grasp? Is the thought that Risen and the Times are themselves subject to the rule of law beyond the ken of 60 Minutes? Risen has fruitlessly pursued his arguments in courts up to and including the Supreme Court. Risen’s vow of noncompliance with a lawful subpoena does not make him a hero, least of all a hero of the rule of law.

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