War on Whistleblowers Has Obama Scrapped the First Amendment?
President Obama is cracking down on leakers. Both Edward Snowden and Bradley Manning face prosecution under the Espionage Act, while a New York Times reporter was ordered to reveal his sources or risk jail time. Is Washington turning its back on freedom of the press?
The New York Times published James Risen's most recent article last Wednesday. It focused on the bipartisan backlash President Barack Obama's administration faces in the wake of revelations about the domestic surveillance operations of America's National Security Agency (NSA). "Lawmakers from both parties called for the vast collection of private data on millions of Americans to be scaled back," it read.
The comprehensive article, written by arguably one of the most distinguished investigative journalists in the United States, fails to mention the fact that Risen himself has become the subject of surveillance. For a number of years now, his telephone conversations and emails have come under scrutiny by the US government. Adding insult to injury, Risen learned last week that he could face jail time for contempt of court if he fails to give evidence at the criminal trial of a former CIA agent -- one of his most trusted sources.
A federal appeals court ruled on Friday that Risen would receive no First Amendment protection safeguarding the confidentiality of his sources -- in this case former CIA employee Jeffrey Sterling. The matter relates to Risen's 2006 bestseller "State of War," which included classified information about CIA efforts to foil Iranian nuclear ambitions allegedly leaked by Sterling.
The ruling could not have come at a more volatile time. In the midst of the revelations by former NSA contractor Edward Snowden, the Risen trial sheds further light on the Obama administration's unparalleled clampdown on official leakers. The 118-page judgment, which sets a precedent that could create significant hurdles for investigative journalism, has dealt a further blow to First Amendment protections for reporters in the US.
President Obama's war on the whistleblower is now being fought on multiple fronts -- in the Russian capital, where Snowden has been given temporary documents and is soon expected to leave the airport he has been holed up in for weeks, and in South America, where the American hopes to be granted asylum. The battle is also being waged in Maryland, where Bradley Manning, a former US Army private, currently faces military trial for passing documents to WikiLeaks. And last week it took hold in Virginia's fourth circuit appeals court, where Risen is likely to be compelled to give evidence.
The fact that Risen is a two-time Pulitzer Prize winner will do little to protect him from what many commentators have described as a "disappointing" ruling. In "State of War," Risen exposed the CIA's attempts in 2000 to channel flawed blueprints to Tehran's weapons designers. The abortive mission, dubbed Operation Merlin, misfired when a Russian double agent on the CIA payroll tipped off Iranian officials about the defects. In his book, Risen describes the mission as "grossly negligent," and brands it one of the most ridiculous gaffes in CIA history.
When the Times decided not to publish the story, Risen decided to do so of his own accord. Shortly after the book's publication in 2006, the Bush administration embarked on an unrelenting pursuit of the leaker, with Obama reopening the case at the beginning of his first term by renewing the Risen subpoena. His decision to do so underscores the emphasis Obama's government is placing on the whistleblower crackdown. It also exposes the increasing tension between the US government and news organizations: In order to get to Sterling, Risen's phone calls, emails -- even his bank statements -- were scrutinized by intelligence services.
Potential Jail Time
Sterling was indicted in 2010. Risen was called to testify, but the New York Times reporter refused, citing the irreconcilable damage it would do to his work if he were to betray his sources. A district court judgement initially backed him up, granting Risen protection against being forced to testify. The appeal court judges, however, found that Risen was the "only witness" who could provide a "first-hand account of the commission of a most serious crime indicted by the grand jury."
If Risen continues to ignore the subpoena, he could face jail time. A similar situation played out in 2007, when fellow Times reporter Judith Miller was jailed for 85 days for refusing to testify about her sources in a scandal surrounding the identity of CIA agent Valerie Plame. At the time, the scandal was widely perceived as a one-off. The same cannot be claimed in Risen's case -- against the backdrop of the Snowden revelations and the Manning trial, this latest judgment could be interpreted as part of a veritable crusade.
The judgement does, however, include a dissenting opinion. Judge Roger Gregory argued that there was sufficient evidence to convict Sterling without Risen's testimony and took issue with the notion that a journalist should necessarily be compelled to reveal sources against his or her will in a criminal case. "The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society," Gregory argues.
The legal landscape now facing US journalists appears to be a bleak one. Senior reporters and media experts, most notably the Reporters Committee for Freedom of the Press, expressed their disappointment over the ruling, arguing that the protection of sources was the most important of the fourth estate privileges for US reporters.
The Justice Department, meanwhile, expressly supported the decision, with a spokesperson announcing that the next steps in the prosecution of the case were already being examined. Ironically, the statement comes shortly after the Justice Department published new guidelines for leak investigations designed to protect the interests of reporters. The revision was a response to public outcry over the department's aggressive investigative tactics, including subpoenaing Associated Press reporters' phone records.
Despite the ruling, Risen has pledged to uphold his decision not to testify. "I remain as resolved as ever to continue fighting," he argued last week in a public statement. "I will always protect my sources." He previously said that he would not shy away from taking the appeal to the Supreme Court.
Yet a reporter took a similar case to the country's highest court in 1972 -- and lost. The court invalidated the journalist's use of First Amendment freedoms as special protection from a summons to testify before a grand jury on a case related to the radical Black Panther movement.