James Risen would prefer not to; Eric Holder must decide what he prefers

James Risen is the New York Times reporter who, on several occasions, has materially harmed the United States with his reporting on top secret affairs. As Scott Johnson has written, “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.” Scott went on to document this assertion:

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 second Risen story (also written with Lichtblau) that destroyed a valuable national security program disclosed our SWIFT terrorist finance tracking program.

You can find the relevant links in Scott’s post.

We have urged that Risen be prosecuted. However, Eric Holder has said no journalist will go to jail on his watch. Mercifully, Holder’s “watch,” if you can call it that, is coming to an end. But President Obama has gone even further than Holder. He says that no reporter should be “at legal risk” for his or her work.

Risen currently is at “legal risk,” though. Jeffrey Sterling, just the kind of disgruntled intelligence officer Scott had in mind (the CIA fired Sterling years ago, as Risen sympathetically reported here), is on trial for his disclosure of yet another secret program, a CIA effort to undermine Iran’s nuclear program. Risen, not surprisingly, is a material witness. The government sought his testimony. Risen refused, asserting privilege.

Judge Leonie Brinkema, of the U.S. District Court for the Eastern District of Virginia, upheld Risen’s claim of privilege. However, the Fourth Circuit reversed her ruling and the U.S. Supreme Court rejected Risen’s petition for review. That was in June of this year.

Since then, Holder’s DOJ has been unwilling to say whether it will subpoena Risen. If it does, Risen has made it clear that he will not comply. Thus, he is at “legal risk.”

Brinkema is a patient judge (at least she was when I used to practice before her). However, her patience with the Justice Department has expired.

This week, as Josh Gerstein reports for Politico, Judge Brinkema gave Holder one week to decide whether to call Risen as a prosecution witness. She explained:

Because Mr. Risen’s presence or absence at the trial will have a significant impact on how the parties present their case, a decision about Mr. Risen must be made sufficiently before trial to enable the parties to prepare adequately. [At a hearing to be held on December 16] the United States must be prepared to commit to a position on whether it will be seeking Mr. Risen’s testimony for the trial, and if so, any conditions or limitations it has worked out with Mr. Risen’s counsel.

(Any speculation that Holder may seek an extension due to “existential worry” is unfounded).

Holder suggested in October that some compromise “resolution” of the dispute over Risen’s testimony is likely. However, Risen’s attorneys say they have no idea what the attorney general was referring to. They add that, even now, they are waiting for word from the Justice Department about how it will proceed.

Thus it seems that the question Scott asked in June — 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? — will finally be answered. I’m guessing the Obama administration will not.

Risen and Obama are on the same team. In Scott’s words, “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.” Holder will be disinclined to punish the administration’s most prominent mouthpiece on his way out the door.

As for Obama, he clearly has no compunction about breaking promises. But his promise that journalists can abet violations of national security laws with impunity strikes me as one he’s likely to keep.

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