Margaret Sullivan writes: Sometimes James Risen feels like Jean Valjean, the beleaguered protagonist of “Les Miserables,” hounded for years by the authorities.
“They just keep coming at me,” Mr. Risen, a Times reporter in Washington, told me by phone last week. It has been 10 years since he learned of a secret C.I.A. program to interfere with Iran’s quest for nuclear weapons, and six since he got an ominous FedEx package containing a government subpoena. Since then, it has been one legal hurdle after another, trying to stay out of court.
Just over a week ago, another blow came: A federal appeals court panel ruled, 2 to 1, against his effort to avoid testifying in the government’s case against Jeffrey Sterling, a former C.I.A. official charged with leaking secret information about the matter.
Mr. Risen’s lawyers, backed by a flotilla of press organizations and journalists, argue that his testimony isn’t necessary and that First Amendment protections, combined with legal precedent, should keep him out of court.
Unwilling to testify, Mr. Risen may end up in jail. Meanwhile, the distractions and the continued scrutiny of government investigators — sure to make sources skittish — have hurt his ability to do his job. That’s a shame given the importance of his work: it was Mr. Risen and his Times colleague Eric Lichtblau who disclosed the Bush administration’s eavesdropping on American citizens without warrants, and the recent revelations of National Security Agency surveillance have built on that foundation.
The chilling ruling by the United States Court of Appeals for the Fourth Circuit said that even though a journalist has promised confidentiality to a source, “there is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in.” National security necessitates that those who illegally leak classified information be brought to justice, the court said. It added that it saw no clear legal justification for treating a reporter differently than any other citizen, and that “other than Sterling himself, Risen is the only witness who can identify Sterling as a source (or not) of the illegal leak.”
Jill Abramson, executive editor of The Times, told me she was “bitterly disappointed in the court’s decision,” calling it a blow to “the ongoing important work that journalists do in holding powerful institutions and the government accountable to the people.”
The case has real-world consequences not only for journalists but for all Americans. It is part of a troubling trend that includes unprecedented numbers of criminal investigations involving leaked information; the obtaining of reporters’ phone records; and even one government claim that a journalist “aided and abetted” a leak. [Continue reading…]