Should New York Times reporter James Risen go to jail? That’s a real possibility, now that the Fourth Circuit Court of Appeals has ruled that he must testify against a probable source in the trial of a former CIA agent accused of leaking classified documents to the media:
In a 118-page set of opinions, two members of a three-judge panel for the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled that the First Amendment does not protect reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking to them. A district court judge who had ruled in Mr. Risen’s case had said that it did.
“Clearly, Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony,” wrote Chief Judge William Byrd Traxler Jr., who was joined by Judge Albert Diaz in Friday’s ruling.
Mr. Risen has vowed to go to prison rather than testify about his sources and to carry any appeal as far as the Supreme Court.
This is not good news for Risen, nor is it good news to the Washington press corps, as slavishly sycophantic a group of “journalists” as has ever gathered in the nation’s capital to drink wine and break bread with their friends on the other side of the aisle, politicians.The case has its roots in the Bush administration (and Attorney General Alberto Gonzales’s decision not to prosecute), so it’s likely the MSM had pretty much forgotten all about its jeopardy, especially with the ascendancy of Barack Hussein Obama. But no. The Washington Post explains:
Risen is a New York Times reporter, but his involvement in the case relates to his 2006 book, “State of War: The Secret History of the CIA and the Bush Administration.” Chapter nine of the book, titled “A Rogue Operation,” describes a “failed attempt by the CIA to have a former Russian scientist provide flawed nuclear weapon blueprints to Iran.” As noted in yesterday’s court ruling, the book doesn’t identify Risen’s sources for the classified information this chapter.
In 2010, former CIA agent Jeffrey Sterling was indicted under the Espionage Act of 1917 for communicating national defense information to Risen for publication in “State of War,” among other charges. Pursuant to the case, the government sought to extract testimony from Risen with a May 2011 trial subpoena. It wanted Risen to “directly identify Sterling” as the source for his secret information.
Risen fought the subpoena, alleging that the First Amendment or federal common law protected him from the government’s quest for courtroom evidence. A federal district court then delivered a resounding success for Risen, citing “a qualified First Amendment reporter’s privilege that may be invoked when a subpoena either seeks information about confidential sources or is issued to harass or intimidate the journalist.” It also wrote the following, which should delight the ink-stained set: “A criminal trial is not a free pass for the government to rifle through a reporter’s notebook.”
That ruling, however, didn’t pass muster with the 4th Circuit appeals court…
Indeed it did not. Here’s the heart of the matter, as analyzed over at Justia.com:
According to the appeals court, the Supreme Court’s Branzburg ruling categorically rejected a First Amendment privilege for reporters to invoke in order to shield their sources in criminal cases. Although subsequent cases in the Fourth Circuit and elsewhere had found a qualified reporter-source privilege in civil cases, the majority noted that Branzburg, like Sterling, was a criminal case, and that the lower courts are not at liberty to overrule the Supreme Court.
In any discussion of press freedom, it’s important to keep in mind an important distinction. As the Pentagon Papers case made clear, the government is forbidden to exercise prior restraint of publication. But once the material is disseminated, reporters are theoretically as vulnerable to legal action as anybody else. The confidentiality of the reporter-source relationship is a journalistic convention, not a legal requirement; hence the existence in many states of “shield” laws that specifically protect reporters going about their constitutionally protected business.
The First Amendment specifically addresses three separate issues: freedom of religion; freedom of personal speech (spoken) and of the press (written); and free assembly. To say that it has been turned on its head by administrations both Democrat and Republican is a commonplace. Atheism has effectively been established as the new state religion; “hate speech” can land you in jail; and “free speech” zones beyond which speech is restricted or prohibited are now routine in our political life, so as not to discomfit our emperors and robed masters as they swan about. If Americans actually cared about their Constitution, there’d be a revolution.
But this is how freedom dies, one “reasonable” restriction at a time, until the whole enterprise collapses under its own artificial weight. There’s a bracing quality to the muscular prose of the Constitution, free as it is of petty legalisms and multiple subordinate clauses. A whole industry, nourished by law schools across the country, has grown up to “interpret” a document that was meant to be read and understood by every citizen, not just lawyers.
The real issue here, though, is not whether reporters are also citizens and thus subject to penalties should they choose to withhold information in criminal cases; the real issue is the Obama administration’s decision to pull Risen into its net, as part of its ongoing war on leaks, leakers, and the fences who market their stolen property, aka reporters.