Posted from Washington on June 1, 2014
Now that the U.S. Supreme Court has denied an appeal by The New York Times’ James Risen, the Pulitzer Prize-winning national security reporter could go to jail sometime soon for refusing to identify a confidential source.
After Monday’s Supreme Court rejection, Risen said, as he has many times before, that he’s sticking with his decision to battle a subpoena – and possibly see the inside of a jail cell – rather than give up a source
“I will continue to fight,” Risen said in an interview with the Medill National Security Journalism Initiative on Monday afternoon.
Now that we’ve heard from Risen, it’s time to hear from another key player in the saga: Attorney General Eric H. Holder Jr.
It’s no secret that the Obama administration has pursued leaks in national security cases far more aggressively than its predecessors. It has brought criminal charges in eight cases; all previous administrations combined brought a total of three.
In Risen’s case, the Obama administration has been clear that it wants to hold him in contempt of a May 2011 subpoena ordering him to testify in the criminal case against former CIA official Jeffrey Sterling.
Prosecutors have contended that Sterling gave Risen classified information about a botched counter-proliferation operation aimed at Iran called Operation Merlin for Risen’s 2006 book, “State of War: The Secret History of the CIA and the Bush Administration.”
In a legal brief, the administration told the nation’s highest court that “reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by confidential sources.”
That means that a lower court ruling stands, which holds Risen in contempt. It’s ultimately up to the judge, but Risen’s options appear to be limited – he can either talk or be held in contempt and, by extension, go to jail.
Monday’s ruling is only the latest in a long series of actions taken by the Justice Department to get Risen to talk. Holder’s prosecutors have been going after the reporter for six years now, and have issued three separate subpoenas to get him to cooperate.
But Holder himself appears to be trying to distance himself from the controversy, and from the Obama administration’s dogged pursuit of Risen and other journalists, by using some artful turns of phrase.
Some of the attorney general’s comments make him appear to be not only at odds with the administration’s aggressive posture, but almost in support of reporters like Risen and James Rosen of Fox News.
Last May, it came to light that the Justice Department portrayed Rosen as a potential criminal co-conspirator in another leak investigation into who gave him classified information about North Korea. Afterward, Holder told Congress that “the department has not prosecuted, and as long as I have the privilege of serving as attorney general of the United States will not prosecute, any reporter for doing his or her job.”
Last Tuesday, Holder went even further in a comment he made to reporters who were being briefed on leak investigations and related matters. The Justice Department agreed to release his comment as a formal statement, but stressed that Holder was not discussing any particular case.
Holder told the journalists that “as long as I’m attorney general, no reporter who is doing his job is going to go to jail,” according to media reports. That statement obviously went much further than Holder’s earlier comments because he was saying he not only wouldn’t prosecute reporters for doing their job, but he wouldn’t imprison them. That seemed to be a clear reference to reporters fighting subpoenas in connection with the prosecution of others – especially their sources.
Wait. What? How can the attorney general of the United States make comments like these at the same time his own Justice Department is, indeed, trying to hold a reporter in contempt for refusing to identify his source? Isn’t that what you’d call doing his job?
It’s worth noting that Holder’s comments last week came, suspiciously, just a few days before the Supreme Court was scheduled to take up Risen’s case. Was he trying to persuade the justices to not take the case and let his ever-so-sensitive Justice Department handle it administratively?
I can see why Holder might want to try and please his boss, the president, by having the Justice Department so forcefully go after reporters. And I can see why he might want to appear to the general public as being understanding, or even supportive of, reporters’ desire to do their jobs without fear of going to jail.
But it’s time for Holder to clarify his comments, and to specifically articulate whether he – and the administration – will continue to push for jail time for Risen. He should either drop the subpoena that he’s pursued for six years (or simply not pursue Risen’s testimony) or stop trying to make it sound like he’s supportive of the kind of reporting that Risen has been doing.
But he can’t have it both ways.
Josh Meyer is director of education and outreach for the Medill National Security Journalism Initiative. He spent 20 years with the Los Angeles Times before joining Medill in 2010, where he is also the McCormick Lecturer in National Security Studies. Josh is the co-author of the 2012 best-seller “The Hunt For KSM; Inside the Pursuit and Takedown of the Real 9/11 Mastermind, Khalid Sheikh Mohammed,’’ and a member of the board of directors of Investigative Reporters and Editors. | Earlier Insights columns
