James Risen, the First Amendment, Congress, and the Emperor Hussein
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.
Enter the Emperor Hussein.
From the moment he invented the Office of the President-Elect, Obama signaled that his would be a different kind of presidency, one solely dedicated to him and his wishes. (Would we even have noticed if Mitt Romney had become president? He would have been the most invisible resident of the White House since Silent Cal.) America was at last to be "fundamentally transformed," delivered from its "charter of negative liberties" and brought into the sunny uplands of the Progressive vision of My Way or the Highway. For his vice-president, Obama chose the risible plagiarist Joe Biden, perhaps (only "perhaps" because the competition is so fierce) the stupidest man in the Senate, and very likely the only fellow member who had even less intellectual firepower and record of accomplishment than Obama did.
Defending his high-handed decision to unilaterally (and unconstitutionally) suspend the employer mandate piece of his widely unpopular Obamacare monstrosity, the president suggested that his critics simply naff off:
The Times asked Obama if he “consulted” with his lawyer when making the decision to suspend the employer mandate, which would require businesses with more than 50 employees to buy them health insurance, and which was supposed to take effect on Jan. 1, 2014.
“[I]f you heard me on stage today, what I said was that I will seize any opportunity I can find to work with Congress to strengthen the middle class, improve their prospects, improve their security,” Obama said.
“But where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people,” he said.
“And if Congress thinks that what I’ve done is inappropriate or wrong in some fashion, they’re free to make that case,” Obama added. “But there’s not an action that I take that you don't have some folks in Congress who say that I'm usurping my authority. Some of those folks think I usurp my authority by having the gall to win the presidency. And I don't think that's a secret.”
“But, ultimately, I’m not concerned about their opinions--very few of them, by the way, are lawyers, much less constitutional lawyers,” the president said.
Take that, peons!
This is not the first time Obama has expressly told the country that when Congress won't act, he will. In effect, he's gradually arrogating and then seizing power in the vacuum left by the clowns, morons and buffoons that, with very few exceptions, inhabit the House and the Senate. Ostensibly a co-equal branch of the American government -- the primus inter pares, in fact, as it's established right there in Article One, the presidency in Article Two, and the lame federal judiciary (which itself has experienced the-blob-that-ate-Cleveland mission creep ever since Marbury v. Madison) in Article Three -- Congress, as it is presently constituted under the two-party system, is incapable of confronting a rogue president head-on. Had it a more vigorous speaker of the House than John Boehner, it could at least make an argument. But not this bunch -- our "representatives" on one side of the aisle see their jobs through an old-fashioned prism, as that of "legislators" sent to Congress to "work with the other side" in order to make "deals" and pass "legislation" that (since the New Deal) must address every problem, real or perceived, facing the country.
On the other side, of course, are the Democrats, who have entirely purged their party of its Scoop Jackson moderates to become the party of ever-bigger government, forever expanding the tentacles of the Leviathan State. Paradoxically, the GOP has become their biggest and most important ally, dutifully still playing by the old rules, until today it can truly be said that we have a Permanent Bipartisan Fusion Government, of which Hussein is the head. As I wrote about the Chris Christie-Rand Paul spat the other day over at the Corner on NRO:
In effect there are now two parties: the Permanent Bipartisan Fusion Party, embodied by Obama and McCain (and what does that tell you about the 2008 election?) and the Other America party, which still believes in old-fashioned things like the Constitution and the Bill of Rights, as reactionary and unenlightened as those things may be.
The support for potential candidates like Rand Paul and Ted Cruz — and the rapid fading of support for people like Christie and Marco Rubio, who badly blotted his copybook with his inexplicable “comprehensive immigration reform” advocacy when that is just about the last thing on the minds of the American people — indicates a hunger for the fight. Conservatives understand that they have two opponents in the 2016 election: Hillary Clinton (or whoever comes out of left field to rob her of the nomination this time) and, far tougher, the McCain/Graham/Rove wing of the Republican party.
"Until that wing is soundly defeated and its accommodationist principles refuted and discredited," I added at the Corner, "conservatives have exactly zero chance of engaging with the Democrats the way the want to: unapologetically and unafraid."
And that's why the Risen case matters. I have to admit I'm of two minds about it. As a former police and federal court beat reporter, I had to go before the majesty of the law a couple of times (with Gannett Co., Inc. lawyers) to explain why I wasn't going to testify in this or that matter, mostly involving my professional demimonde of corrupt cops, hookers, junkies, thugs, drug dealers and murderers. (Much of that milieu and ambiance made it into my first novel, Exchange Alley.) On the other, as a small-d democrat, I believe we are all capital-C Citizens, with all the rights, duties and obligations pertaining thereto.
But the administration's palpable lust to go after him, and Fox News's James Rosen, and the Associated Press, et al., sends an unmistakable message: displease the Emperor Hussein at your own risk. A man who's been pampered and coddled all his life, told he is the Second Coming -- hell, a guy who graduated from Punahou, the elite prep school serving the white aristocracy of a brown island chain (and the only high school in Hawaii where young Barry was guaranteed not to blend right in) -- is not about to accept petty constitutional restrictions on his freedom of action; the presidency (as Lincoln and Wilson and FDR taught us) is what you make of it, and no office in the American system of government rewards Nietzsche's Will to Power more than the Oval Office.
What will become of the Emperor Hussein's collision with Thomas Jefferson and the rest of the Founders, however, remains to be seen. Those of us on the right continue to have faith in the Framers' vision of a country of yeomen Citizens, moderated but otherwise unshackled by a distant federal government in the swamp along the banks of the Potomac, "regulated" in the sense of "made regular," not "controlled"; were it left to us, everything not enumerated in the Constitution to the feds would be forbidden, the people and the states would be restored to their Ninth and Tenth Amendment sovereignty, and life would go on much the same as it did prior to the rise of Regressivism during the Wilson administration and the arrival of the communist Frankfurt School before we rescued it from Nazi Germany and transplanted its intellectual pretension and moral evil to Columbia University. And that most definitely includes the civil rights movement, utterly constitutional, morally correct, and emphatically supported by the original anti-slavery party, the GOP.
But whether, at this point, there are enough of us remains to be seen; most Americans in flyover country aren't obsessed with politics the way their blue-state brethren are, and don't make politics their life's work. They're the Makers, not the Takers, and it never occurs to them that a sizable part of the country, perhaps now a majority, from the president on down, is devoted to plundering the productive class. That's the real meaning of "fundamental transformation," and if Barack Obama succeeds in effecting it, he'll go down in history as the most successful president in American history. And also the last.
Think about that.