Lessons of the Risen case

We have written several times here about the case of James Risen. Called to testify in the government’s prosecution of former CIA officer Jeffrey Sterling for violation of the Espionage Act, Risen declined to testify; Sterling had laundered his exposure of a Clinton-era operation intended to undermine Iran’s nuclear program (I rashly infer from the circumstances, under a promise of confidentiality) through Risen in one of his recent books. The Times itself had acceded to the imprecations of former Secretary of State Condoleezza Rice not to let Risen blow the program in its pages.

Risen challenged the subpoena compelling his testimony in Sterling’s prosecution. He asserted a privilege not to testify to Sterling’s role in disclosing the program reported in Risen’s book. Risen pursued his claim of privilege in proceedings up to the Supreme Court. When the Fourth Circuit Court of Appeals rejected Risen’s claim of privilege, the Supreme Court declined to review the ruling. The New York Times story on the Supreme Court’s order declining review is here.

Risen presented the government with a choice: force Risen to testify or be held in contempt if he refused, or abandon its claim to his testimony. Rather than putting Risen to the test, the government has now abandoned its efforts to secure Risen’s testimony. You (I) could see the surrender coming from a mile away; I predicted it this past June in “James Risen would prefer not to.”

Now come the editors of the New York Times to celebrate and to offer the presumed “Lessons of the James Risen case.” The lessons are about what you would expect in the sodden style of the Times’s narcoleptic effusions: “First, dedicated journalists like Mr. Risen are willing to stand up to protect the identity of their sources. The second is the need for a strong federal shield law broadly protective of reporters who do that under the pressure of a high-profile leak investigation.”

The Times omits to mention in this editorial look back on the Risen case that it passed on Risen’s story. Times editors found the public harm it would do by publication to outweigh any good disclosure might entail. In fact, Risen’s story accomplished no discernible public good and likely did serious damage to the national security of the United States. See, e.g., my recurring footnote below.

Note also that the Times’s point 2 purports to limit the desired federal shield law to “high-profile leak investigation[s].” As formulated by the Times, the shield law is inane. The editors prefer not to say what they meaan; they want a shield law according reporters with a privilege against disclosing confidential sources, period. (Let’s leave the definition of “reporters” for another day.)

Here are a few unstated lessons that a reader can infer from the Times editorial. Reporters are citizens subject to the same rights and obligations as other citizens of the United States. Risen and the Times have no more immunity to disclose confidential matters of national security protected by the Espionage Act than Jeffrey Sterling does. They are subject not only to the same criminal laws as the rest of us, they are subject to the same testimonial obligations.

The Times characterizes the Fourth Circuit ruling rejecting Risen’s claim of privilege as “an atrocious legal precedent[.]” The Times implies that the Fourth Circuit ruling is some kind of outlier, but it comports with precedent. The Supreme Court has never recognized “any reporter’s privilege in the First Amendment or common law[,]” as the Times editorial puts it. That is most likely why the Supreme Court declined to review the Fourth Circuit ruling in Risen’s case.

NOTE: I wrote about the legal issues in the Times’s publication of national security information protected under the Espionage Act in the Weekly Standard column “Exposure,” but Gabriel Schoenfeld owns this story. For a full understanding of what Risen has wrought here I urge interested readers to read Schoenfeld’s Weekly Standard articles “Not every leak is fit to print” (2008), “What gives?” (2010), and “A privileged press?” (2014) as well as Schoenfeld’s Power Line post “A Risen in the sun.”

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