By Rosanna A. Cavanagh
The subpoena of James Risen, an investigative reporter for The New York Times, to testify at the trial of Jeffrey Sterling, a former employee of the CIA, has been the subject of a two-year litigation, the resolution of which will either help spur an era of restoration of our cherished First Amendment freedoms of speech and the press, or forever change the playing field upon which investigative journalism is practiced, creating a wall of secrecy between government and journalist and necessarily a curtain of darkness over the workings of government to the average citizen.
On Feb. 7, 250 New Englanders will gather in Boston to bestow the Stephen Hamblett First Amendment Award on James Risen. The significance of the event is much deeper, however. In the city that showed the world the importance of political symbolism with the Boston Tea Party, another act of symbolism will be performed. We will vote with our feet for the direction we wish to see our country go.
Presently the petition for a writ of certiorari by James Risen sits with the Supreme Court of the United States. If the Supreme Court grants his petition and hears the case, it will rule on a fundamental question that U.S. Circuit Courts have been unable to decide consistently: Should journalists have a privilege rooted in our First Amendment freedom of the press not to reveal sources, when those sources are under criminal prosecution (especially when more frequently and in the Risen case the crime being charged is leaking and conveying classified information). The 4th Circuit broke with four other circuit courts in July by ruling that reporters should have no such protections (even protections that would be subject to a balancing of interests to be performed on a case by case basis). The rehearing of the case was denied by the full Court of Appeals in October and the writ petition was filed on Jan. 13.
Why does this case matter? Because open governance matters and lies at the heart of true democracy, something that several government agencies seem to have forgotten in the post 9/11 era. Judge Damon Keith’s opinion in Detroit Free Press v. Ashcroft concerning secret deportation hearings of suspected terrorists conducted by George W. Bush’s administration stated that “democracies die behind closed doors.” Risen wrote State of War to bring into the public eye and discourse the way our war on terror has been prosecuted out of public view. Revelations in the chapter at issue in the litigation have to do with activities of the CIA around the world, including a secret plot in Iran that perhaps did more harm than good to our national security. This incident raised issues that arguably deserve a public airing, at least after the fact to see what we can learn from our mistakes and what, if any, procedures could be put in place to avoid such pitfalls in the future.
This episode is by no means unique; from time to time in our nation’s history all branches of government have engaged in bad practices only revealed to the public and exposed to correction by the leaks of confidential sources. Risen’s certiorari petition cites “countless stories of tremendous historical significance” including: the Watergate break-in and cover up, the abuse of prisoners in Abu Ghraib, Iraq, the existence of secret CIA prisons in Eastern Europe, the use of warrantless wiretaps on U.S. citizens and systematic lack of adequate care for veterans at Walter Reed Army Medical Center. These are examples of stories that would never have been written without the reporter’s ability to promise sources confidentiality and keep those promises. The decision in the Risen case will change the reporter’s ability to keep those promises without spending time themselves in jail — an honorable act of sacrifice, no doubt, but why such a cost should be extracted from journalists in a civilized democracy must leave us to wonder.
It is not a forgone conclusion how the U.S. Supreme Court will rule. Of the five circuits that have ruled on this point, four have held that a qualified reporter’s privilege derived from Justice Powell’s concurrence in the 5-4 Branzburg v. Hayes decision should be allowed in criminal cases. Two other circuits have gone farther by applying the privilege even where non-confidential information is at stake. The split decision of the 4th Circuit Court of Appeals panel was a departure from the trend in other circuits; the 13-1 decision not to re-hear the case by the full 4th Circuit Court of Appeals was surprising. The Branzburg case involved the criminal activities of the Black Panthers and a special setting of a grand jury proceeding. The special role of the grand jury proceeding was highlighted in the opinion; “the longstanding rule that ‘the public has a right to every man’s evidence’… is particularly applicable to grand jury proceedings,” wrote the court. Justice Powell with his deciding vote in a concurrence wrote that competing interests should be balanced on a case by case basis: “the asserted claim to privilege should be judged on its facts by the striking of a proper balance between the freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” Other circuit courts have adhered to Powell’s approach by distinguishing the grand jury setting from other criminal proceedings, allowing reporters’ privilege to prevail in other settings.
Another important distinction making Risen’s case (and a trend of other cases in the Obama administration Justice Department) different than the situation in Branzburg is that the main crime here for which the alleged source is being charged and for which Risen’s testimony would be relevant is the communication itself. (Jeffery Sterling is charged with unauthorized retention and communication of national defense information; unlawful retention of national defense information; mail fraud; unauthorized conveyance of government property; and obstruction of justice.) It is one proposition to say if the only way to convict a multinational drug dealer is to get the only evidence available from a reporter for whom he was a source, we should do it. It is quite a different proposition to say that we are going to prosecute anyone who leaks classified information to a reporter as a criminal and bring the reporter into the litigation by using the criminal/civil distinction to eviscerate his privilege. The fact that information is classified can become an arbitrary distinction under a regime of over-classification; a committee established by Congress, the Public Interest Declassification Board, has found that over-classification is “imped[ing] informed government decisions and an informed public” and, worse, “enabl[ing] corruption and malfeasance.” (One government agency it studied was found to be classifying the electronic equivalent of 20 million filing cabinets filled with text every 18 months.) PolitiFact found that Obama’s administration has used the Espionage Act, a dusty law from World War I era, to prosecute leakers of classified information more times than all other previous administrations combined. These two simultaneous developments are troubling indeed to those who believe in transparent governance.
Justice Gregory wrote in his dissent to the 4th Circuit opinion that “guarantees of confidentiality enable sources to discuss ‘sensitive matters’ …[e]ven in ordinary daily reporting… If reporters are compelled to divulge their confidential sources, the free flow of newsworthy information would be restrained the public’s understanding of important issues and events would be hampered in ways inconsistent with a healthy republic.” James Risen has determined not to divulge any information about his sources. In doing so, he is taking a stand to protect the free flow of information in our democracy. The international watchdog the Committee to Protect Journalists cites 211 journalists imprisoned around the world in 2013. Let’s not have the United States add to that number in the coming year. Let us hope that wisdom will prevail and the United States Supreme Court will breathe new life into our First Amendment freedoms, so we can again be a beacon of light to the rest of the world.
Rosanna is executive director of the New England First Amendment Coalition.