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05.06.10

Send This Reporter to Jail

New York Times reporter James Risen is facing prison if he doesn’t reveal sources that gave him highly classified information on U.S. intelligence in Iran. Gabriel Schoenfeld says no reporter is above the law.

Is this déjà vu with Judith Miller all over again? A leak of classified information to our nation’s paper of record may end up with a reporter facing a contempt citation and a jail term. James Risen, The New York Times investigative reporter, has been asked by prosecutors, on pain of imprisonment, to disgorge the identity of the anonymous sources who divulged CIA secrets he wrote about in his 2006 book, State of War. The key difference between then and now, one causing alarm and dismay in liberal circles, is that it is Barack Obama’s Justice Department—not George W. Bush’s—that is brandishing the subpoena.

Investigating the same episode, the Bush administration tried to have Risen questioned in 2008, but Risen’s lawyers challenged the summons in court and it expired without Risen ever testifying. The Obama administration has not allowed the matter to die. Unless Risen succeeds once again in getting the subpoena quashed, he faces the prospect of either violating the pledge of confidentiality he gave to his sources, or, like Judith Miller in the Valerie Plame leak investigation, refusing to testify and going to jail.

If James Risen keeps his silence and is held in contempt of court and then sent to jail, that will certainly provoke howls of outrage in the press. It will also be a just outcome, for no one is above the law.

“Why is the Obama administration going after the reporter for something that happened during the Bush presidency?” asks Max Fisher at The Atlantic. The question is loaded; it carries the implication that the United States is a banana republic, a country in which the law changes every time a new caudillo comes to power. Needless to say, it does not. Still, the subpoena of Risen was extraordinary under the Bush administration and it is extraordinary again today. What explains it?

book-cover---schoenfeld-risen
Necessary Secrets: National Security, the Media, and the Rule of Law By Gabriel Schoenfeld 309 pages. W. W. Norton & Company. $27.95. ()

The intelligence operations around which the subpoena revolves are detailed in the ninth chapter of Risen’s State of War. They involve alleged CIA bungling in Iran. One portion of the chapter describes a CIA blunder with a system that made it possible "to send high-speed, encrypted messages directly and instantaneously from CIA headquarters to agents in the field who were equipped with small, covert personal communications devices." Thanks to an erroneous transmission, the Iranians were effortlessly able to round up all of America’s spies. The CIA, wrote Risen, was left "virtually blind in Iran, unable to provide any significant intelligence on one of the most critical issues facing the United States—whether Tehran was about to go nuclear."

The same chapter in State of War also explores Operation Merlin, the codename for a CIA plan to convey flawed plans for the trigger of a nuclear device to Iran via an Iranian mission in Vienna. The scheme, according to Risen, was to lead the Iranians to use defective schematics in their design so that "instead of a mushroom cloud, the Iranian scientists would witness a disappointing fizzle." But according to Risen, Operation Merlin was also botched. The flaws in the blueprints were easy to spot and once the Iranians had done so, Risen contended, they would have accurate plans for the crucial portion of the bomb. Risen tossed in the detail that the National Security Agency had successfully intercepted communications between the Iranian mission in Vienna and Tehran and “broken the codes of the Ministry of Intelligence and Security, Iran’s foreign intelligence services.”

All the topics broached in Risen’s ninth chapter were highly classified. Merlin was deemed a Special Access Program requiring ultra-high clearances for officials in the know. For very good reason, codebreaking is regarded as one of the most sensitive subjects of all, one that Congress has protected with a special statute. So too has Congress safeguarded information pertaining to the design of nuclear weapons. Although it is impossible to tell from the public record, there is reason to believe that the secrets disclosed in Risen’s book were exceptionally damaging to national security.

The Obama administration, which has pledged, after all, to be the most transparent in American history, has chosen to reissue the subpoena. One would assume that Attorney General Eric Holder, not exactly a hardliner in our intelligence wars, would not have personally put his signature on such a document if the breach were of little consequence or the result of a CIA vendetta.

Another reason to believe the harm was great is that The New York Times itself declined to run the material that Risen includes in chapter nine of his State of War. Other parts of the same book—most notably, details of the National Security Agency’s so-called warrantless wiretapping program—were emblazoned across the paper’s front pages. Did editors think the material about Iran was too thinly sourced, or were they worried about crossing a national-security danger line? Alas, the editors of The New York Times are not subject to the provisions of the Freedom of Information Act. They themselves operate in secret and have declined to detail their decision-making.

Whatever explains that particular blank spot in the Times, the central fact is that secrecy is a basic tool of national defense. Everyone in government who works with classified information is in effect being entrusted by the public to safeguard the secrets he or she encounters. Sensitive information that we telegraph to our adversaries can lead to the deaths of agents. By compromising our sources and methods and capabilities, leaks can also lead to disasters on a larger scale. That is precisely why, as a condition of employment, government officials are asked to take oaths pledging to protect the secrets they encounter.

The oaths reads in part: “I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States” and “I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws.” In short, the officials who spilled classified information to James Risen were breaking the law, and James Risen, if not an outright co-conspirator, was a witness to the crime.

Risen and his attorneys are pledging that he will uphold the promise of confidentiality he gave to his anonymous sources. But the Supreme Court ruled long ago, as Justice Byron White put it for the majority in the 1972 landmark Branzburg decision, “that agreements to conceal information relevant to commission of crime have very little to recommend them from the standpoint of public policy.” Concealment, even of a crime in which one is oneself not a participant, is itself a crime—misprision of a felony—punishable by a statute enacted by the very first Congress and still on the books. Covering up a crime, wrote White, “deserves no encomium, and we decline to afford it First Amendment protection by denigrating the duty of a citizen, whether reporter or informer, to respond to grand-jury subpoena and answer relevant questions put to him.”

In short, James Risen has an obligation as a citizen to tell a grand jury who provided him with classified information that may have severely damaged our ability to deal with Iran’s nuclear program. This obligation has not deterred voices in and around the press from justifying both the leaking and the publishing of the leaked materials. Risen himself calls his anonymous sources “heroes.” Others, striking a tone of outrage, profess to see no public purpose served by government secrecy in this critical realm: “The message [the Obama administration is sending] to everyone is, 'You leak to the media, we will get you,' " is what Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, complained to The Washington Post. “We had thought that the Obama administration would be different,” writes Times columnist Nicholas Kristof, “a little less likely to want to menace and jail journalists... I find this utterly disappointing."

But what is utterly disappointing—yet not in the least surprising if one is familiar with the exalted status members of the press like to confer on themselves—is not the subpoena issued to Risen. Rather, it is the assumption held by Nicholas Kristof and many others in the news business that journalists are exempt from the fundamental obligations of citizenship. If James Risen keeps his silence and is held in contempt of court and then sent to jail, that will certainly provoke howls of outrage in the press. It will also be a just outcome, for no one is above the law.

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Gabriel Schoenfeld, a senior fellow at the Hudson Institute and a resident scholar at the Witherspoon Institute, is the author of Necessary Secrets: National Security, the Media, and the Rule of Law, due out late this month from W.W. Norton.