Resist this

Steve Coll is dean of the Columbia Journalism School and an accomplished reporter in his own right. He is a staff writer for the New Yorker and the author of Ghost Wars: The Secret History of the CIA, Afghanistan and bin Laden and the Soviet Invasion, From the Soviet Invasion to September 10, 2011, among other books. He reports on issues of intelligence and national security and in the journalism trade, he’s at the top of the heap.

In the current issue of the New York Review of Books Coll reviews New York Times reporter James Risen’s Pay Any Price: Greed, Power and Endless War. Coll opens the review with Risen’s disclosure of Operation Merlin, the classified CIA operation to undermine Iran’s nuclear program. He meticulously reconstructs the background we have gone over here a number of times in connection with the government’s prosecution of former CIA official Jeffrey Sterling for violation of the Espionage Act in his collaboration with Risen:

In early 2003, James Risen, an investigative reporter in the Washington bureau of The New York Times, prepared a story about a covert CIA effort to undermine Iran’s nuclear program. Before publishing it, he informed the CIA of his findings and asked for comment. On April 30, 2003, according to a subsequent Justice Department court filing, CIA Director George Tenet and National Security Adviser Condoleezza Rice met with Risen and Jill Abramson, then the Times’s Washington bureau chief. Tenet and Rice urged the Times to hold Risen’s story because, they said, it would “compromise national security” and endanger the life of a particular CIA recruit. (The agent is referred to in the Justice filing as “Human Asset No. 1.”) Eventually, the Times informed the CIA that it would not publish Risen’s story. Abramson said recently that she regrets the decision.

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On January 5, 2006, Free Press brought out State of War, Risen’s first book, which contained, in Chapter Nine, a critical account of “Operation Merlin.” In this covert action of the Clinton administration, according to Risen, the CIA recruited a Russian scientist to provide flawed nuclear weapons designs to Iran, in hopes of delaying the country’s progress toward constructing a bomb. Instead, the scientist pointed out the design flaws to the Iranians, which may have helped them.

From this tangled history of investigative reporting and espionage has arisen one of the most consequential confrontations between the government and the press in a generation. The Obama administration inherited the case from the Bush administration. The Obama administration then pressured Risen aggressively to reveal the sources he relied upon in describing “Operation Merlin.” The result, as his book and other evidence make clear, was that the Justice Department’s actions damaged the First Amendment and the rights of journalists.

In mid-January, however, after several years of expensive litigation, the Justice Department reversed itself and conceded in federal court that Risen could avoid testifying about his confidential sources. Risen will not be going to prison. Justice’s concessions marked a significant advance for the cause of a freer press after many reversals during the Obama years. In this age of terrorism fears and digital surveillance, the protection of journalistic sources is becoming more difficult and more contested.

Coll’s review is “The reporter resists his government” (behind the NYRB’s subscription paywall). The review is worth reading, but Coll frames it exclusively in the terms suggested by the review’s headline. Risen is the hero of his own tale. Coll does not allow the interested reader to understand the legal or public policy issues raised by Risen’s disclosure of Operation Merlin and other classified national security programs. Insofar as we can determine from Coll’s review, Risen stands heroically in opposition to the persecution of the United States government.

Coll writes in the penultimate paragraph of the review: “In Pay Any Price, Risen shows through his portfolio of investigative stories how diverse are the Americans working in or around the national security state who are moved by conscience or grievance to dissent, and do so through cooperation with journalists.” Risen’s book covers more ground than the Sterling case, but this ascription of motives is extremely misleading as to Sterling.

Sterling was a disgruntled former CIA employee; it appears that Risen became acquainted with Sterling when he aired Sterling’s grievances against the agency for alleged discrimination. Risen’s first Times story about Sterling dates to March 2002: “Fired by CIA, he says agency practiced bias.” Sterling may have blown Operation Merlin in a fit of pique.

At trial Sterling denied that he was Risen’s source; he didn’t cloak himself in the motives Coll ascribes to him and other of Risen’s sources. He stood on his right not to incriminate himself and put the government to the trouble or proving its allegations against him beyond a reasonable doubt. Was Sterling engaged in “resistance” in cooperating with Risen to blow Operation Merlin? I asked Coll via Twitter (below):

The Sterling case raises large questions. Do journalists have immunity from the espionage laws? Should they? Do journalists have a privilege against testifying to matters of their personal knowledge in lawful Espionage Act prosecutions (or other criminal cases)? Should they? How are “journalists” different from other citizens of the United States in respect of their proper testimonial obligations? Coll addresses vaguely goes about the business of addressing a variant of the larger issues in his current New Yorker editorial comment “The president and the press.”

Coll perfectly represents the proposition advanced by Gabriel Schoenfeld in the Power Line post “A Risen in the sun.” Schoenfeld observed: “What is notable about this campaign [on behalf of Risen] is the refusal of Risen’s proponents even to acknowledge the case on the other side, let alone to put forward creditable arguments that answer that case.” Coll’s NYRB review comes too late in the day to be marked Exhibit A in support of Schoenfeld’s observation, but it deserves special recognition of some kind.

I ask readers to let me conclude on my usual 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 Schoenfeld owns this story. For a full understanding of what Risen has wrought in the Sterling case 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).

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