Gabriel Schoenfeld has graciously responded to my invitation to comment on last night’s 60 Minutes segment publicizing the case of New York Times reporter James Risen. Mr. Schoenfeld is a senior fellow at the Hudson Institute and the former senior editor of Commentary. He is also the author of The Return of Anti-Semitism and, most recently, A Bad Day on the Romney Campaign. In Necessary Secrets: National Security, the Media, and the Rule of Law, he authoritatively examines the issues raised by Risen’s repeated disclosure of highly classified national security information. I am most grateful to Mr. Schoenfeld for the opportunity to add his thoughts to the record and place them before our readers. He writes:
A campaign is under way to present New York Times reporter James Risen as a potential martyr in the cause of the First Amendment guarantee of freedom of the press. The CBS 60 Minutes piece dissected here by Scott is the latest and most high-profile installment in the effort to date.
What is notable about this campaign 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. Along with Scott, I have attempted in several pieces (that Scott kindly provided links for) to lay out the reasons why Risen, if he is called as a witness in the trial of former CIA agent Jeffrey Sterling, should be compelled to testify under penalty of contempt of court.
Sterling has been accused of a serious crime. He will soon go on trial for leaking information that allegedly compromised a CIA covert action to hinder Iran’s nuclear bomb-making effort. The government contends that Sterling’s leak also endangered the life of a person working for or with the CIA in that covert operation. Although Sterling calls himself a “whistleblower,” there is reason to believe that he was motivated by personal grievance rather than pursuit of the public interest, which makes his alleged breach of trust indefensible on any grounds.
Under our system of justice Sterling must be presumed innocent unless and until he is convicted by a jury of his peers. James Risen is said by the government to be the only witness to the alleged crime. If Sterling is innocent, it is vital that Risen testify, otherwise an innocent man might go to prison for many years. If Sterling is guilty, it is equally vital that Risen testify, lest a man who betrayed the country and endangered our national security goes unpunished.
It is an ancient principle of Anglo-American jurisprudence that the public has a right to every man’s evidence. In line with that principle, the Supreme Court has affirmed and reaffirmed that news reporters do not enjoy an exemption from the requirement to testify about criminal acts they have witnessed. Congress has repeatedly considered and rejected passage of a shield law that would establish such a privilege. In refusing to testify, Risen claims to be defending the rule of law. That is an inversion. The law is clear. And he will be breaking it.