DOJ Releases Report on Subpoenas and Search Warrants Directed at Journalists

Last Friday the Department of Justice released a report on subpoenas and search warrants directed at members of the media in 2014.  It revealed that only two subpoenas and one search warrant related to news gathering activities were approved last year — and none of them was actually enforced.

The most high-profile of these subpoenas was the one issued to New York Times reporter James Risen to compel him to testify at the trial of Jeffrey Sterling. Sterling is a former CIA official who was prosecuted for illegally leaking classified information to Risen about a CIA program to derail Iran’s nuclear ambitions.  After battling for more than four years to win the legal right to compel Risen to testify, in the end DOJ chose not to enforce the subpoena and successfully prosecuted Sterling without Risen’s testimony.

In today’s on-line world, the media and journalism are bigger than ever and touch more and more aspects of our lives.  Given this reality, the number of cases in which DOJ even considered seeking information from a journalist is truly miniscule.  Yet Risen has called President Obama the greatest threat to press freedom in a generation, and the media in general has pushed a narrative that this administration’s actions involving the press routinely threaten the First Amendment.

In light of the new report from DOJ, it seems like a good time to revisit a post I first wrote last November taking a critical look at the claim that the Obama administration is engaged in a “war on the press.”  You can find that post here.

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The Ongoing Debate Over the Reporter’s Privilege

I had a video conference last week with a group of judges attending the National Judicial College in Reno, Nevada. They were taking a course on Media and the Courts, and wanted to discuss the reporter’s privilege. Their instructor reached out to me after seeing some articles I’ve written opposing the privilege. The primary topic of discussion: should there be a reporter’s privilege?

A reporter’s privilege, or shield law, protects journalists from being compelled to testify about the identity of their confidential sources or other information they learned while newsgathering. Supporters of the privilege argue that if reporters can be compelled to reveal their sources, whistleblowers and others who wish to remain anonymous will be afraid to talk to them. That will impair the ability of journalists to root out important information and will deprive the public of the benefits of a vigorous free press.  Without the privilege, they claim, sources will be “chilled” from coming forward and the free flow of information to the public will dry up.

I first became interested in the reporter’s privilege and started writing about it ten years ago, during the Valerie Plame/CIA leak case.  During that investigation, reporter Judith Miller of the New York Times was held in contempt and went to jail for about three months after defying a court order to reveal her White House source in the grand jury.   Miller’s incarceration led to a number of unsuccessful attempts to pass a privilege law in Congress, but efforts to shield leakers of confidential information lost steam in the aftermath of Wikileaks and Edward Snowden.

Renewed debate over the privilege has been in the news again recently. Reporter James Risen asserted the privilege and refused to testify in the criminal trial of Jeffrey Sterling, a former CIA employee charged with leaking classified information to Risen. The courts ruled against Risen after a four-year legal battle, but he still refused to testify. Faced with the prospect of having Risen jailed for contempt, the government at the eleventh hour withdrew its subpoena and prosecuted Sterling (successfully) without Risen’s testimony.

In addition, earlier this month, the National Press Club and the Reporters Committee for Freedom of the Press hosted a reunion of journalists who have gone to jail to protect their confidential sources.  (Judith Miller was a featured participant.) The gathering was part of a renewed push to urge Congress once again to pass a federal shield law.

The judges and I had a great conversation. Here’s a summary of some of their questions and my responses.

old newsroom - should there be a reporter's privilege?

What’s the current legal status of the reporter’s privilege? 

On the federal level, the Supreme Court ruled in 1972 in Branzburg v. Hayes that the First Amendment does not provide a privilege for reporters to refuse to testify in grand jury proceedings. That remains the law as far as grand jury proceedings are concerned. Lower courts have disagreed over whether there is at least a qualified privilege in civil cases, or in criminal matters other than grand jury proceedings. The Supreme Court has not weighed in since Branzburg, although it did recently decline to hear the appeal of the Fourth Circuit’s decision in the James Risen case, which rejected Risen’s claim of privilege in a criminal trial.

Over the past four decades there have been many unsuccessful attempts in Congress to pass a federal shield law. Since the CIA leak case and the jailing of Judith Miller, a bill called the Free Flow of Information Act has been introduced in repeated Congressional sessions but has never been passed.

Although there is no federal shield law, the Department of Justice has voluntary guidelines that sharply limit when DOJ attorneys are allowed to subpoena a reporter. Those guidelines were recently made even more strict in the wake of the Risen case and some other recent DOJ skirmishes with the press.

On the state level, forty-eight states and the District of Columbia recognize some form of a reporter’s privilege in at least some cases, either by statute or by judicial decision. Wyoming and Hawaii are the sole holdouts.

Should There Be a Reporter’s Privilege?

Privileges are contrary to the fundamental precept that the public is entitled to every person’s evidence. By definition, a privilege keeps relevant information out of the hands of a judge or jury trying to decide a case. If the information is important enough, that can lead to errors and injustice in particular cases, including wrongful convictions or guilty individuals escaping punishment altogether.

Proponents of any new privilege therefore have the burden of demonstrating that the benefits of the privilege would outweigh the costs. On the benefit side of the equation, reporter’s privilege advocates argue that in the absence of a privilege sources will fear to speak to reporters and the public will be deprived of vital information. They cite such famous stories as Watergate, Abu Ghraib, and the revelation of secret CIA prisons and NSA wiretapping to demonstrate the critical importance of confidential sources to investigative journalism.

The problem with this argument is that all of those stories were reported, and all of those sources came forward, in the absence of a federal shield law. One could just as easily argue, therefore, that these stories demonstrate a shield law is unnecessary.

In Branzburg the Supreme Court was skeptical of the premise behind the shield law, noting that the lessons of history suggest the free press has always flourished without a privilege.  Claims about “chilling effects” and harms to the press, the Court noted, were largely made by self-interested members of the media themselves.

On the cost side, we also must recall that the shield law is a blunt instrument that protects the bad along with the good. Not all leaks involve a virtuous whistleblower seeking to benefit the public by disclosing government misconduct. Some leaks are political hit jobs, like that in the Valerie Plame/CIA leak case, or otherwise involve bad motives. There is no public interest in shielding such leaks to the press.

Finally, it’s not true that reporters cannot promise sources confidentiality in the absence of a shield law. Because cases in which journalists are subpoenaed are so rare, reporters can provide sources with a high degree of confidentiality simply by promising not to name them in the story and never to reveal their name unless legally compelled to do so.

Leaks happen, and particularly in Washington, leaking to the press is almost a way of life. Sources talk to the press for many different reasons, some noble and some not so noble. There is no evidence that the presence or absence of a shield law makes any real difference in whether or not a source decides to come forward. In the absence of such evidence, the rationale for the shield law evaporates.

Why has the legislation repeatedly failed in Congress and what are its prospects?

I think there have been two primary stumbling blocks for the federal shield law.

The first is the question of carving out exceptions. Congress is understandably not willing to enact a blanket privilege that would apply in every case. Therefore the proposed statutes always contain exceptions providing that the privilege will not apply in cases involving terrorism or where national security is threatened, or in cases involving certain violent crimes, or sex crimes against children, or other categories of offenses.

Inability to agree on the proper scope of these various exceptions has helped stall the bills. The problem, of course, is that the more exceptions the bill contains, the less effective it will be because it becomes more and more difficult for a source or a reporter to determine, at the time of a potential disclosure, whether the privilege would apply. If we assume for argument’s sake that sources actually weigh the presence or absence of a privilege when deciding whether to speak to a reporter, the most effective privilege would be a blanket one with no exceptions – but Congress will never agree to that.  A privilege full of loopholes is little better than no privilege at all.

A second thorny problem is how to define who is a “journalist” entitled to the protection of the shield law. Even more than forty years ago in Branzburg, the Supreme Court noted that trying to define who is a “newsman” worthy of the privilege “would present practical and conceptual difficulties of a high order.” This was at a time when the news media consisted largely of local newspapers, radio, and three television networks. In the age of the Internet, social media, and citizen journalism, those difficulties are exponentially greater.

Congress is trying to strike a balance between covering those who are truly engaged in journalism while not creating a sweeping privilege that might apply to everyone who posts something of public interest on their own blog or Facebook page. Trying to draw those lines has proven challenging; the latest iteration of the shield law contained a definition of a “covered journalist” that was hundreds of words long, full of exceptions and qualifications, and that still didn’t satisfy all the interested parties.

How would you solve the definition of “journalist?”

I’m not sure there is a way to do it that doesn’t raise significant constitutional problems. The Supreme Court has made it clear that the protections of the First Amendment apply equally to the New York Times and to a lowly street-corner pamphleteer – or pajama-clad blogger. But the shield law requires the government to define who is a “real” journalist worthy of special legal protection and who is not. That effectively creates a subset of “approved” speakers, and approaches a system of allowing the government to license journalists. I agree with investigative journalist Walter Pincus at the Washington Post that this raises significant First Amendment concerns.

Why not just have a sweeping definition of “journalist” that covers everyone who shares information with the public?  What’s the problem?

If the privilege applies to everyone who shares any information with the public, then a tremendous amount of information from an enormous number of witnesses is potentially excluded from the legal system. Again, privileges have costs, and the more sweeping the privilege, the greater the costs.  And once again we’d have to wonder whether there are really any offsetting benefits that would outweigh those costs, considering that the information age currently appears to be thriving in the absence of such a privilege.

A related problem is the administrative costs of the privilege. Every claim of privilege requires legal proceedings, pleadings, lawyers, hearings, and court time to resolve. If a privilege is too broad, a huge amount of time, money and effort in the judicial system will be devoted to adjudicating claims of that privilege.

If almost all states have some form of privilege, why can’t the federal government have one?

This really is an apples to oranges comparison. The largest and most significant cases, including those involving national security and terrorism, tend to be in federal court. A federal shield law would have far greater potential to apply in those types of cases, and therefore to shield the most dangerous or harmful conduct. State courts generally don’t deal with issues of that magnitude.

For the federal shield law, the potential stakes are much higher. That’s part of the reason Congress has had so much trouble working out the terms of a shield law that it could live with.

What sort of evidence would it take to convince you that the privilege is a good idea?

To borrow a hypothetical posed by one of the judges, suppose Watergate had never been reported. Then suppose Mark Felt came forward in the 1990s, after Nixon had died, to say he had considered talking to Woodward and Bernstein but had been afraid to do so because of the absence of a reporter’s privilege. As a result, there was no “Deep Throat,” and the country never learned about a major political scandal.

If credible stories like this existed, that would at least provide some evidence that shield law advocates are correct. It wouldn’t have to be on the scale of Watergate, of course, but if the privilege is really as important as its advocates claim, you’d think there would be some documented examples of sources coming forward later to say they were deterred from speaking in the past due to the absence of a privilege. I’m not aware of any such examples, but if they were out there, one would at least have to rethink the cost and benefits questions surrounding the privilege.

(As an aside, speaking of Watergate, I have it on good authority — from a reliable, confidential source — that Bob Woodward, Mr. Investigative Journalism himself, thinks the reporter’s privilege is unnecessary and a bad idea.)

Why should reporters go to jail for just doing their jobs?

They don’t. This is one of the greatest red herrings in the whole privilege debate, and everyone (on both sides of the argument) resorts to it.

In totalitarian countries, governments may throw journalists in jail for what they write. THAT’s a reporter going to jail for doing his or her job. That doesn’t happen in the U.S. and has nothing to do with the privilege debate. Judith Miller did not go to jail for anything she wrote, and James Risen was not facing the prospect of jail based on any of his reporting.

When reporters are jailed in privilege disputes, it is for contempt of court. They have refused to answer a question in a legal proceeding without a valid excuse. As a result, like any other witness, they may be jailed for contempt to try to coerce them into complying with the court’s order.

As an attorney, part of my job includes protecting client confidences, and the law recognizes the attorney-client privilege. But if a judge rules that the privilege does not apply in a given case and that I must testify about something a client told me, my obligation is to obey that court order. I don’t get to decide for myself what the law requires. If I defy the court’s order, I can be jailed for contempt until I comply.

All legal privileges, by definition, must exist within the framework of the legal system and the rule of law. That means that courts are the final arbiters of privilege questions. Individuals who defy lawful court orders are not “doing their jobs,” they are placing themselves above the law.

Many reporters feel so strongly about the privilege that they, like Judith Miller and James Risen, will refuse to testify no matter what a court says. This is also why passing a shield law will not keep reporters from going to jail. Assuming that any shield law passed by Congress would contain some exceptions, there will still be future cases where a Court rules that the privilege does not apply. In such a case, if the reporter still refuses to testify, he or she can still be jailed for contempt. Contrary to the claims of its supporters, therefore, a shield law will not keep reporters from being locked up.

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Thanks to the National Judicial College for the enjoyable discussion. Those interested in taking a much deeper legal dive into these and other issues surrounding the reporter’s privilege can find law review articles that I’ve written here and here.

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Sentencing Leakers: David Petraeus vs. Jeffrey Sterling

On April 23, 2015, David Petraeus — a retired four-star general, former commander of U.S. and NATO forces in Afghanistan, and former director of the CIA — was sentenced to two years probation and a $100,000.00 fine for mishandling classified information. Petraeus pleaded guilty to a single misdemeanor charge based on his disclosure of classified information to his mistress, Paula Broadwell, who was writing his biography.

On May 11, 2015, former CIA officer Jeffrey Sterling was sentenced to 42 months in prison for his unlawful disclosure of classified information to James Risen, a reporter for the New York Times. Sterling was convicted at trial of nine felony counts of violating the Espionage Act and related offenses for leaking information to Risen about a classified CIA operation to undermine Iran’s nuclear weapons program.

The two sentencings, occurring so close to each other, prompted inevitable comparisons.  For example, Mark Berman, a reporter with the Washington Post, tweeted that Sterling was “sentenced to same prison time as Petraeus, plus 3.5 years.”  The theme of much of the commentary, such as articles here and here, was that treating Sterling more harshly than Petraeus was unfair because the two men had committed similar crimes.  Many suggested Petraeus had received more lenient treatment simply because he, unlike Sterling, was powerful and connected.

Sterling’s lawyers also pointed to the Petraeus case at Sterling’s sentencing, arguing that the two cases were comparable and that “Mr. Sterling should not receive a different form of justice than General Petraeus.”

So what was the basis for the different sentences, and are the comparisons and criticisms justified?

 David_H._Petraeus_2008_portrait

Facts of United States v. David Petraeus

While he was commander of military forces in Afghanistan, Petraeus maintained small black notebooks that contained his daily schedules and personal notes from briefings and meetings that he attended. During his time in Afghanistan he filled up eight such notebooks. They contained classified information including identities of covert officers, war strategy, intelligence capabilities and mechanisms, and diplomatic discussions, along with details from National Security Council meetings and Petraeus’ conversations with the President.

After Petraeus returned from Afghanistan and retired from the military, the Department of Defense began collecting classified materials that he had accumulated during his tenure. Petraeus never informed the DOD officials gathering his materials about his black notebooks, and kept them in his possession at his house.

In 2011 author Paula Broadwell was working on a biography of Petraeus. She and Petraeus, who was married, were also having an affair. In August of 2011, Petraeus gave the notebooks to Broadwell for a few days so she could review them. (Broadwell apparently has a security clearance, but it is unlikely her clearance would have authorized her to view all of the material in the notebooks.) None of the classified information from the notebooks ended up in the biography, which was published in 2012.

In October of 2012, during an interview with the FBI, Petraeus lied and said he had never provided any classified information to Broadwell. In the wake of the investigation and the revelation of his affair with Broadwell, Petraeus ultimately resigned from the CIA in November, 2012.  On April 5, 2013, pursuant to a search warrant, the FBI seized the black notebooks from an unlocked desk drawer in Petraeus’ house.

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Facts of United States v. Jeffrey Sterling

Jeffrey Sterling was a ten-year CIA employee with access to extremely sensitive information. In particular, he was deeply involved in a project known as “Operation Merlin,” a covert operation to undermine Iran’s nuclear weapons program. Merlin involved using a former Russian scientist, now living in the United States and cooperating with the CIA, to feed faulty nuclear weapons plans to Iran. The idea was to send Iran down some blind alleys in order to delay and disrupt its development of a nuclear weapon.

In the early 2000’s, Sterling began filing a series of personnel grievances and lawsuits against the CIA, alleging racial discrimination in connection with his employment and with CIA decisions about whether he could publish certain material in his memoirs. Over several years his lawyer made escalating demands to the CIA for financial settlements of the disputes, which the CIA refused.

During this same time period, Sterling began having meetings and telephone conversations with James Risen. Sterling disclosed classified information about Operation Merlin to Risen and apparently gave him copies of classified documents. According to the evidence at trial, Sterling provided Risen with a distorted and inaccurate view of the operation, in order to make it appear the CIA had bungled the program and may have actually aided Iran rather than hindering it.

In the spring of 2003, Risen informed the CIA of his intention to publish a story about Operation Merlin. National Security Advisor Condoleezza Rice and other government officials met with Risen’s editors to express grave concerns about the national security damage that could result if the story was published. In light of the government’s concerns, Risen’s editors agreed to kill the story. Risen was reportedly furious. Two years later he wrote a book about the CIA, State of War, in which he devoted a chapter to Operation Merlin and disclosed the classified information that his editors at the Times had agreed to protect in the interest of national security.

Comparison of the Two Cases: Apples to Apples?

The Petraeus and Sterling cases reached their denouements just a few weeks apart, with dramatically different results for the two defendants. But although it’s tempting to equate the two cases, as many have done, it is really a comparison of apples and oranges. Both involve the improper disclosure of classified material, but that’s about where the similarities end.

Intent: A defendant’s intent is always an important factor when determining the appropriate charges and punishment for a given offense. The government’s evidence at trial was that Sterling intended to harm the government and was motivated, as the government put it, by “pure vindictiveness” and “spite.” Angry with the CIA over what he perceived as wrongful personnel and other actions, he disclosed highly sensitive material and painted a distorted picture of a covert operation in an effort to embarrass and harm the agency. In so doing he appears to have had little concern for the possible damage to national security that might result.

Sterling also plainly intended that the classified information he revealed would be publicly and widely disclosed. By giving the information to a prominent national security journalist for one of the nation’s leading newspapers, he maximized the likelihood that the sensitive, classified material would be made public – which of course also maximized the chance that national security would be harmed.

With Petraeus, there was no evidence of any malicious intent or desire to harm national security. It’s hard to say what exactly motivated him; probably a combination of ego, wanting to make sure that the historical record of his accomplishments was as full and accurate as possible, and a desire to please the woman with whom he was having a relationship. But there was never any suggestion that Petraeus intended to cause any harm.

There also was no evidence that Petraeus intended for any classified information to be made public; it appears he was trying to give Broadwell background information and context for the book. Even if Broadwell had included classified material in a draft, it’s likely that review of the proposed book by government agencies or by Petraeus himself would have caught it and stopped it from being published.  Petraeus (unlike Sterling) had no reason to think that the recipient of the classified material he disclosed had any desire or motive to reveal it to the world.

This difference in their level of intent also helps to explain the different charges of which the two men were convicted. The Espionage Act, the felony Sterling was found guilty of violating, includes a requirement that the defendant knew the disclosed information could be used to injure the United States and to benefit a foreign nation. Mishandling classified information, the misdemeanor to which Petraeus pleaded guilty, contains no such element.

Actual Harm Caused: The government maintains that the damage caused by Sterling makes his one of the most serious leak cases in recent memory. Sterling’s disclosures, according to the government’s evidence at trial, shut down an active covert operation and one of the few mechanisms the government had to restrain Iran’s nuclear ambitions. Unlike other recent leakers, Sterling disclosed an ongoing, classified operation involving human foreign intelligence assets. The same type of operation had been used not only against Iran but against other nations as well. Former National Security Advisor Rice testified at Sterling’s trial about how important Operation Merlin had been and how damaging the disclosure of the program was.

There was also testimony at trial, including from the Russian scientist himself, that as a result of Sterling’s disclosures the scientist and his family now live in fear that a foreign government may harm them in retaliation for his cooperation with the United States.

At Sterling’s sentencing, the judge noted that his leaks effectively disclosed the identity of a covert asset who was working with the CIA and to whom Sterling had been assigned. The judge observed that this kind of disclosure is one of the most serious breaches of a CIA official’s duty. It betrays the trust that an asset placed in the CIA and may make it more difficult for the government to recruit other foreign human assets in the future.

By contrast, by allowing Broadwell to read his notebooks, Petraeus appears to have caused no actual harm at all. As discussed above, none of the material was ever publicly disclosed, and there appears to have been little risk that it would be. Although allowing Broadwell to review the materials and keeping them in an unlocked desk in his home was a serious breach of the rules for handling classified information, it was more of a procedural violation than an actual betrayal.

Plea vs. Trial: Petraeus accepted responsibility for his conduct and pleaded guilty. Sterling never accepted responsibility for his conduct, took the case to trial, and was ultimately convicted by a jury.

Defendants who plead guilty almost always get some credit from the government, as well as from the sentencing judge. This age-old concept is also built in to the federal Sentencing Guidelines, which provide significant benefits to a defendant who pleads guilty before trial. A guilty plea is a sign of contrition and that the defendant has accepted responsibility for his conduct, behavior worthy of favorable consideration by the sentencing judge. In addition, by pleading guilty a defendant saves the government from the considerable time, effort and expense required to take a case to trial. In a case like Sterling’s, this is particularly important because the trial itself may require the government to reveal at least some classified information that it would prefer to remain secret.

Sterling’s lawyers argued that it would be unfair to penalize him because he exercised his constitutional right to put the government to its proof. But this simply gets it backwards: it’s not that a defendant who goes to trial is penalized; it’s that a defendant who pleads guilty gets a benefit. That has always been true, and is another factor that distinguishes the Sterling case not only from Petraeus but from other recent leak cases pointed to by Sterling’s lawyers involving John Kiriakou and Stephen Kim, who also pleaded guilty.

We don’t know what kind of plea discussions took place between the government and Sterling, but there’s little doubt that if Sterling had been willing to step up and admit responsibility early in the case he could have received a much more favorable deal and a more lenient sentence. Similarly, had Petraeus stonewalled the government and refused to plead, he very likely would have faced far more serious charges.

Personal background: A judge always takes a defendant’s personal history into account when fashioning an appropriate sentence. That’s one of the reasons that Presentence Reports are prepared, to give the sentencing judge detailed information about the background and accomplishments of the defendant. It’s also the reason people write letters to the sentencing judge in support of a defendant and urging leniency, such as the more than 400 letters that were sent to the judge who was recently preparing to sentence former Virginia Governor Bob McDonnell, attesting to McDonnell’s good character and record of public service.

Petraeus came before the court after 37 years of serving the country in the military and, most recently, in the CIA. He was considered one of the most able military leaders in the nation and to have done an admirable job commanding forces in Afghanistan. That type of career of public service entitles a defendant to considerable credit. It makes his offense look all the more like an isolated lapse of judgment in an otherwise sterling career where he sacrificed a great deal for his country.

For his part, Sterling has some impressive personal accomplishments as well, including graduating from law school, his career at the CIA, and a subsequent successful career as a fraud investigator for an insurance company. But in terms of overall record and service to the nation, he is no David Petraeus. That is particularly true considering his efforts, near the end of his CIA career, to undermine and damage the agency and country he had sworn to serve.

*  *  *

 In sum, it’s much too simplistic to look at the two cases, see that they both involved leaks of classified information, and conclude that the different sentences are unjustified or arise from some improper reason. Every case is unique, and here there are substantial differences that explain the different sentences.

Actually, in both cases the sentences seem about right to me. In Sterling’s case, it’s worth noting that the sentencing guidelines actually called for a sentence of about 19 to 24 years in prison. The judge rightly recognized that in a case involving leaks to the media, as opposed to actual espionage against the United States, such a sentence would have been crazy. (Even the government seemed to acknowledge this and did not argue for a sentence within the guidelines, as it normally would, but simply asked that the sentence be “severe.”) In light of the harm caused by Sterling’s conduct, his malicious intent, and the sentences received by other recent leakers of classified information to the press, Sterling’s sentence of 42 months appears eminently fair, if not a bit lenient. Even his own lawyer, after the sentencing, said that the judge “got it right.”

As for Petraeus, I’m not entirely unsympathetic to the view that he got a pretty sweet deal. This is particularly true considering he initially lied to the FBI about revealing classified material to Broadwell. Lying to the FBI can be prosecuted as false statements, a five-year felony. There were reports that the FBI agents working on the case were upset and thought that Petraeus should have been treated more harshly, given his lack of candor. That view has some force.

On the other hand, few defendants who end up entangled in the justice system have Petraeus’ record of a lifetime of distinguished and valuable service. The notebooks were his personal notes, not original classified materials, and one can see how he might have viewed them as somewhat less sensitive. And his lie — a simple denial of guilt when interviewed by the FBI — is a type of case that, as a matter of policy, the Department of Justice generally does not prosecute.

This was a serious screw-up by someone who knew better. But given his overall history, lack of intent to harm the country, lack of any actual damage resulting from his conduct, and willingness to accept responsibility and plead guilty, I can’t say that Petraeus should be going to jail or that his plea deal seems unreasonable.

Jeffrey Sterling, James Risen, and Prosecuting Leakers: Lessons from the Sterling Trial

UPDATE 1/26/15 3:30 pm – the jury has found Sterling guilty on all nine counts.

UPDATE 5/11/15 – the judge today sentenced Sterling to 42 months in prison.

The long legal saga involving former CIA officer Jeffrey Sterling is drawing to a close. At this writing his criminal trial has concluded and the jury in Alexandria, Virginia is deliberating.

CIA logo

Sterling was indicted on multiple counts of violating the Espionage Act and related charges. The government alleges he illegally leaked classified information concerning a covert CIA operation to New York Times reporter James Risen. The program, dubbed “Operation Merlin,” involved using a Russian scientist working with the U.S. to deliver flawed nuclear weapon blueprints to Iran in an attempt to derail their weapons program.

When Risen first received the information the Times honored a government request not to run the story due to national security concerns. Risen, however, later revealed the same information in his book, State of War.

Ever since Sterling was indicted in 2010, a central drama in the case had been the government’s efforts to compel Risen to testify about whether Sterling gave him the classified information. Risen refused to comply with the government’s subpoena, claiming a reporter’s privilege to refuse to identify his source.

The trial judge initially upheld Risen’s privilege claim and the government appealed. Relying on the 1972 Supreme Court case of Branzburg v. Hayes, the U.S. Court of Appeals for the Fourth Circuit ruled there is no privilege that allows a reporter to refuse to testify in a criminal case. The U.S. Supreme Court declined to consider Risen’s appeal.

After his appeals were exhausted, Risen continued to say he would go to jail rather than comply with the court order to testify and reveal his source. Shortly before the Sterling case went to trial, the government announced that it would withdraw its subpoena of Risen and would not seek his testimony. The trial proceeded without Risen taking the stand.

So what lessons can be drawn from the Sterling/Risen drama?

DOJ’s Decision to Drop the Risen Subpoena 

The big surprise in the case was the government’s decision to drop the Risen subpoena. Risen was a critical witness, and the case was delayed for nearly four years while the government fought for the right to compel him to testify. Why would you do that if you’re not willing to follow through?

The prosecutors ended up going to trial with one hand tied behind their backs. The best possible witness to the alleged disclosure of classified material – the person to whom it was disclosed – did not have to take the stand. The government was left to put on a circumstantial case relying on evidence of phone calls, e-mails, and details in Risen’s book that allegedly could only have come from Sterling. The prosecutors who fought for years to compel Risen to testify must have felt they had the rug pulled out from under them.

But the truth is the government simply bowed to the inevitable. When Judith Miller of the New York Times was jailed for contempt in 2005 for refusing to testify about her source in the Valerie Plame/CIA leak case, that was in connection with a grand jury investigation. The grand jury could simply be put on hold while waiting to see whether the contempt penalty would convince Miller to change her mind. After 85 days in jail, Miller ultimately did agree to testify in the grand jury after her source, Scooter Libby, released her from her promise of confidentiality.

But the Sterling case involved a trial, not a grand jury investigation. If Risen were called to the stand and refused to testify (as he clearly would have), he could be jailed for contempt but the trial would have to go on. The judge would not, and could not, put the entire trial on hold for weeks or months to see whether Risen came around. And once the case was over, Risen would have to be released; a witness can’t be incarcerated to coerce him to testify when the proceeding where his testimony is required no longer exists.

In the end, therefore, the government would have had to endure all the fallout from jailing a reporter and the prosecution still would not have had the benefit of Risen’s testimony. Despite the government’s legal victories, Risen ultimately held all the cards so long as he was willing to go to jail for a few days until the trial was over. Given that reality, it made sense for the government to fold.

The Difficulty in Prosecuting Leak Cases 

The Sterling case highlights the problems with leak cases from a prosecutor’s perspective. First, they are notoriously difficult to investigate. Assuming the leak was to a member of the press, DOJ Guidelines will not allow the prosecutor even to attempt to speak to the only direct witness – the reporter – unless all other possible avenues have been exhausted (and maybe not even then).   That means a difficult investigation trying to identify and interview every potential source of the leak, scouring computers, e-mails and telephone records, and otherwise trying to establish proof sufficient to sustain a conviction with largely circumstantial evidence.

In the rare case where the prosecutor does seek information from the reporter, that effort will almost undoubtedly be met with fierce resistance. There will be a lengthy delay as the reporter, backed by top First Amendment lawyers, litigates whether he or she has a privilege to refuse to testify. Delay is bad for a prosecution: memories fade, witnesses become unavailable, and the case generally gets more difficult to prove.

Finally, if the case ultimately goes to trial, the government will be hamstrung in presenting its case. Matt Zapotosky had a nice piece in the Washington Post last week about the challenges of trying leak cases. To prove a leak of classified information the government has to expose at least some material that, by definition, was not supposed to be public. The Sterling case involved CIA officers testifying behind a screen to protect their identities and certain lines of questioning that were deemed out of bounds due to the restrictions on classified information. The government has to walk a tightrope between proving its case and still protecting the confidential information that led them to bring the case in the first place.

Sometimes these obstacles are insurmountable. In a high-profile embarrassment in 2011, the government was forced to drop felony charges against alleged leaker Thomas Drake after the judge ruled that Drake had to be allowed to reveal certain classified information in order to defend himself. Rather than reveal the information during the trial, the government allowed Drake to plead to a single misdemeanor.

No wonder leak prosecutions are relatively rare and are considered almost a no-win proposition by federal prosecutors.

The Hazards of Relying on Leakers

In his book, Risen claimed that Operation Merlin had been botched and may actually have helped Iran. (This was also Sterling’s view, which is one reason he was suspected to be Risen’s source.) CIA officials at Sterling’s trial painted a very different picture, testifying that the program had been working and that its disclosure damaged our efforts to thwart Iran’s nuclear program and may have put the lives of American assets overseas at risk.

It’s probably not surprising that government officials would have a different view of the program. Given its classified nature it may be years, if ever, before we know the full truth. But this does highlight the hazards for journalists of working with a leaker of classified information.

People leak information for all kinds of reasons, some of them noble and some not so noble. The government alleged that Sterling was a disgruntled former CIA employee who had been fired, had filed multiple personnel actions, and had an ax to grind. Such an individual has an incentive to leak information that makes the agency look bad and to slant their disclosures in a certain way.

A prosecutor working with an informant faces an analogous situation. A good prosecutor realizes that an informant may shade the truth or tell outright lies in order to make themselves look less culpable or to try to tell the prosecutors what the informant thinks they want to hear. If I have an informant telling me about a drug operation, I’m going to investigate to death everything they tell me and try to corroborate it with other witnesses and evidence. I don’t ever want to be in a position of having to take just the informant’s word for anything – or to ask a jury to do so. A prosecutor in such a case has to be wary of “falling in love” with his informant and accepting what they say uncritically.

Journalists, too, may “fall in love” with a source. A good journalist will recognize this risk, of course, but his options for corroborating the source are more limited. If a journalist receives illegally leaked classified information, other people are not likely to talk to him about it. He can’t make extensive inquiries without potentially exposing his source. Even if other government officials wanted to provide contrary information or a fuller picture, they may be unable to do so without revealing additional classified material.

When it comes to stories based on classified information there is a risk that a journalist, armed with what appears to be a juicy disclosure, will run a story based on incomplete or even inaccurate information. The journalist may be getting only one perspective and is seeing only what their source wants them to see. A good and professional journalist will do whatever possible to avoid this, but the risks are still there. And of course there are bad and careless journalists out there, just as there are bad and careless prosecutors.

I have no idea where the truth lies concerning Operation Merlin and I’m certainly no apologist for the excesses of the CIA during the “war on terror.” But given the choice between believing Sterling’s account (as reflected in Risen’s book) and that of the career CIA people who testified at his trial, I see no particular reason to believe Sterling. It seems perfectly plausible to me that the program was working and that its disclosure harmed national security. Only the most cynical partisan would argue that, simply because it’s the CIA, the operation must have been flawed and the officials at Sterling’s trial must have been perjuring themselves.

The broader cautionary point is that not all leakers are virtuous whistleblowers interested only in the public good, not all leaks are a good thing or are necessarily truthful, and just because a secret government operation is disclosed in the press doesn’t mean that the press got it right or got the whole story.

NY Times

The Reaction of the Press

 As you might expect, there has been a fair amount of ball-spiking by the media going on since the government dropped the Risen subpoena, with the press praising Risen as a hero and condemning the prosecution. The New York Times wrote an editorial last week called “Lessons of the James Risen Case,” criticizing the Obama administration’s supposed record of “aggressively attacking investigative journalism” and praising journalists like Risen who “stand up” to the government.

As I discussed in a previous post, leak cases are about trying to stop leaks and protect national security, not about attacking journalism. Due to the nature of the cases clashes with the press happen from time to time, but that’s a far cry from saying that journalism itself is under assault. Only a handful of leak cases are brought, and most of those do not involve attempts to subpoena a journalist.

The Times laments that the Risen case resulted in an “atrocious legal precedent” in the Fourth Circuit denying a reporter’s privilege.  But the Fourth Circuit’s decision was not some kind of new, groundbreaking result; it was a relatively straightforward application of Branzburg, the controlling Supreme Court case that the Times neglected to mention.

The Times and others also argue that the Risen incident demonstrates the need for a federal shield law for reporters. Privilege advocates argue that a shield law is essential to ensure that aggressive investigative reporting such as Risen’s will continue. I completely agree about the critical importance of investigative journalism, but this argument always baffles me. The leaks to Risen, as well as all of the leaks over the years concerning things such as Abu Ghraib, secret CIA prisons, Watergate, and so on, took place without a federal shield law. If anything, the fact that leaking has gone on at a robust pace in the absence of a shield law demonstrates that a shield law is unnecessary.

In any event, the proposed shield laws that have been kicking around Congress for the past decade all have contained exceptions where national security is concerned. Congress is understandably not willing to pass a law providing that sensitive classified information may be disclosed to reporters with impunity. Even if a federal shield law were in place, therefore, it likely would not have protected Risen in this case.

There are other significant obstacles to passing a shield law, including how to define who is a “journalist” entitled to the law’s protections. In the end, the Risen case is unlikely to have any significant effect on the long-stalled efforts to get a shield law through Congress.

The press outrage over James Risen and some other recent cases has already prompted the Department of Justice to further tighten the guidelines concerning when a prosecutor may seek information from a reporter. I expect clashes such as the one between Risen and DOJ are going to become even more rare in the future, and leak cases will become even more difficult to prosecute. That may be the real legacy of the Obama administration’s so-called “war on the press.”

Will McAvoy Goes to Jail: Reporter’s Privilege and “The Newsroom”

I’ve enjoyed watching The Newsroom, Aaron Sorkin’s HBO series that will soon end its third and final season. If you’re not a fan, the show chronicles the behind-the-scenes action at a fictional cable news network, ACN, as the staff confronts the many thorny issues facing the modern media. Jeff Daniels stars as Will McAvoy, the anchor of ACN’s hourly news broadcast, “News Night.”

The last few episodes have featured a storyline in which McAvoy is jailed for contempt after refusing to reveal a confidential source’s identity to a federal grand jury. The source illegally leaked 37,000 classified documents to ACN. The documents detail a failed U.S. covert operation against a foreign government in which dozens of people were killed. The government believes the disclosure has compromised intelligence operations and endangered lives, and wants to prosecute the leaker.

The federal prosecutor investigating the leak subpoenas Will to testify in the grand jury and name the source. Will refuses, despite an order from a federal judge that he comply. Although Will is confident that he is “too big to jail” and the government would never seek to lock him up, that confidence turns out to be misplaced and he is jailed for contempt of court.

The story is no doubt inspired in part by the recent events involving James Risen, the reporter for the New York Times who has been subpoenaed to testify at the criminal trial of former CIA employee Jeffrey Sterling. The government believes Sterling illegally leaked classified information to Risen and wants Risen to confirm that fact. Risen has refused and has said he will go to jail rather than reveal his source. As of this writing, Sterling’s trial is set to begin soon and there is no reported resolution of the standoff between Risen and the government.

I’ve done a lot of work over the past decade on the issues surrounding the reporter’s privilege, and have written about the Risen case on this blog here and here. In brief, I think the privilege is a bad idea. There’s no evidence that confidential sources are deterred from coming forward by the lack of a privilege — after all, investigative journalism has thrived for more than 200 years without one. The privilege would effectively immunize leakers of classified material, making it almost impossible to protect even the most sensitive national security information. And in today’s digital world, any government effort to define who is a “real” journalist worthy of a special legal privilege presents huge First Amendment issues of its own. (Anyone interested in reading a more in-depth critique of the reporter’s privilege can find a law review article I wrote in 2008 here.)

old newsroom

Reporters Privilege and The Newsroom

It’s been interesting to watch The Newsroom’s dramatization of the reporter’s privilege issues. The show has done a good job of acknowledging that the Supreme Court’s 1972 decision in Branzburg v. Hayes holds there is no constitutional privilege for a reporter to refuse to identify a source in a grand jury investigation. Legally, Will doesn’t have much of a leg to stand on.

The show also highlights some of the anomalies surrounding leaks of classified information to reporters. For example, in one scene a producer is in a conference room with stacks of the leaked documents and his girlfriend – also a journalist – walks in. He says, “There’s classified documents in here, you can’t be in here,” and walks her out of the room. The irony, of course, is that the producer himself has no more legal right to be looking at classified materials than does his girlfriend.

Journalists often think of themselves as self-appointed monitors to review classified information, but some characters in The Newsroom rightly question this notion. How exactly are journalists, who have no formal training in national security or counter-espionage, qualified to make decisions about what is a “good” leak or a bad leak, whether government covert operatives have done a good job, or whether publishing certain information might damage our country’s interests? Journalists are unelected and unaccountable to the public, and work in an intensely competitive industry where professional accolades accrue to the first to reveal new information. It’s not at all clear why we should feel comfortable entrusting them with potential life and death decisions about national security.

Trusting journalists to protect information that truly needs to be kept secret also assumes that any leaks will be made to a “mainstream media” organization that will behave responsibly and listen to government concerns about disclosing the information. This is no longer necessarily true. At one point in The Newsroom the source, who feels the story is not being aired quickly enough by ACN, threatens simply to dump all the documents on the Internet.

This highlights another fact of life about leaking in the digital age. Sources no longer require the “mainstream media” in order to get their classified information out to the public – all they need is an Internet connection. If the information is compelling enough, they can depend on the mainstream media to pick up the story and publicize it widely. There’s no real need to leak information to a reporter anymore, and no guarantee that an established media organization will carefully vet the information before disclosing it.

Art Doesn’t Always Imitate Life

Of course, real life doesn’t always make for riveting TV drama, and you can’t quarrel with the need to take a little artistic license. But lest anyone think that McAvoy’s experience is an accurate depiction of what would happen in a real-world case, let’s examine just three points:

1) Get subpoenaed on Monday, go to jail on Friday – McAvoy and ACN have a great legal malpractice claim against their lawyer, Rebecca Halliday. In the show, McAvoy is subpoenaed, goes before the grand jury twice and refuses to reveal his source, appears before the judge twice, gets held in contempt, and gets hauled off to jail – all in the space of a week. Halliday pretty much just sits back and lets it all happen.

In real life, once McAvoy received a subpoena, Halliday would have filed a motion to quash the subpoena based on a claim of reporter’s privilege. (Although the Supreme Court in Branzburg made such a claim very difficult, a reporter is free to try to convince a court to recognize the privilege in their particular case.) If she lost before the district court judge, she could appeal to the U.S. Court of Appeals. If she lost again, she could petition to have the entire Court of Appeals rehear the case en banc, and if that was denied, she could file a petition for certiorari to the U.S. Supreme Court. Each of these stages would involve months of briefing by both sides, oral arguments, and waiting for the court’s decision.

All of this would likely consume at least 18 months to two years, during which the subpoena would be on hold. McAvoy would not have to appear before the grand jury and would not be held in contempt for refusing to testify. This is exactly what has happened in the Risen case, where these types of legal battles have delayed the trial of Jeffrey Sterling for more than two years while Risen has yet to face a single question under oath.

This is one very practical reason that a prosecutor will subpoena a reporter only as a last resort. If you do so, you are almost certainly wading into a huge legal battle against top-notch media lawyers that will delay your case for at least a couple of years. Delay is bad for the prosecution: memories fade, witnesses become unavailable, circumstances change, and the case generally gets more difficult to prove.

In The Newsroom, for example, McAvoy’s source ends up taking her own life about two months after he is held in contempt and the government drops the subpoena because it no longer needs his testimony. In real life, after only sixty days the briefing at the District Court level alone would probably not be complete. If Halliday had done her job properly, Will would never have seen the inside of a grand jury room, much less a prison cell.

2) Going for the reporter first – On The Newsroom it appears the government learns about the leak and goes straight to ACN and McAvoy to seek to compel them to reveal their source. There’s no indication that the prosecutors did any investigation within the government to see if they could independently identify the leaker without needing to talk to the press.

In real life, federal prosecutors are governed by strict Department of Justice guidelines concerning when they may seek to compel information from the press. Among many other things, those guidelines require prosecutors to demonstrate they have exhausted every other potential option and that they are seeking information from the press only as a last resort and only because it is absolutely necessary.

Before even thinking about going to the reporter, prosecutors would do an exhaustive investigation into the possible source of the leak. This could include examining government computer and phone records, interviewing any possible witnesses or sources, examining phone and other records of possible suspects, perhaps conducting lie detector tests or having witnesses swear out affidavits denying they were the source, and taking other investigative steps.

Both the Department of Justice guidelines and any judge reviewing a motion to quash a subpoena of a journalist would require the prosecution to demonstrate that it has exhausted every other possible investigative avenue and that it is coming to the journalist only as a last resort. Again, that could take months or years. Rule #1 in any leak investigation is that you can’t begin with the press – you have to try everything else first.

3) The raid on the newsroom – Here the show crosses over into real fantasy.  The FBI shows up at the ACN offices with a squad of agents and a warrant to seize not only documents but every computer hard drive in the room, to search for evidence of the leaker’s identity. Presumably they plan to comb through all the documents and computers looking for evidence, in the process examining every aspect of ACN’s First Amendment activities.

I’m not aware that something like this has ever happened, and I can’t imagine that it would. No Justice Department in its right mind would request such a sweeping warrant allowing the government to seize everything on every computer of a news organization, and no judge in his or her right mind would approve it.

This incident may be (very loosely) based on the case last year where the Department of Justice subpoenaed records for a number of phone lines from the Associated Press. Prosecutors were investigating a leak to the AP about a CIA operation to foil an al-Qaeda bomb plot in Yemen. The disclosure compromised an ongoing CIA terrorism investigation. After hundreds of interviews and the review of thousands of documents failed to identify the leaker (again, proving they had exhausted every other option), the Department of Justice subpoenaed the phone records.

The AP phone records were just lists of numbers that connected to a specific group of phones during a specific limited time period. They revealed nothing about the content of any conversation or even the identity of the parties to the conversation. That’s a very far cry from the sweeping seizure of computer hard drives and documents to comb through the contents. Nevertheless, there was such an outcry over even the more modest AP subpoena that the Department of Justice ultimately revised its guidelines on media subpoenas to make them even stricter.

Having the FBI swoop down on a news organization and seize everything in sight makes for good drama, but it has nothing to do with reality.

prison cell

 Will McAvoy Goes to Jail

There is one more feature of the story on The Newsroom that is very different from real life: McAvoy’s reaction to the subpoena. When the judge asks McAvoy what he thinks the court should do, he replies that he understands the government’s position and is sympathetic to it. He says he understands how much more damage leaks of classified information can do in the Internet age, and how rapidly. He recognizes that the government needs to try to protect certain secrets in the interest of national security and that the prosecutor is just doing his job.

McAvoy doesn’t go on a rant about how the subpoena proves that the current administration hates the press, or that the administration is the greatest threat to press freedom in a generation or is trying to punish him for his reporting. He doesn’t act as though his case means the end of the First Amendment as we know it. McAvoy would recognize such claims for the overwrought histrionics that they are and would mock them mercilessly. He acknowledges the legitimate government interests involved in seeking the information. But he believes that, as a journalist, he simply can’t comply with the subpoena.

I think Will makes the wrong decision, but you’ve got to respect the way he handles it.

Update 12/13/14:  News today is that Attorney General Holder has decided the Department of Justice will not seek to compel James Risen to identify his source in the Sterling trial.  Looks like Risen, unlike McAvoy, will avoid going to jail.

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Ink by the Barrel: Assessing the Obama Administration’s “War on the Press”

There’s an old adage about tangling with the press that advises: “Never pick a fight with someone who buys ink by the barrel.” The Obama administration must be reflecting on the wisdom of that advice these days. The administration’s pursuit of leakers of classified information has led to accusations that it is at war with the press.

Over the past few years, the press has concluded that this administration is just about the worst thing that ever happened to them. James Risen, the New York Times reporter under subpoena to testify in the criminal trial of his alleged source Jeffrey Sterling, has said he believes President Obama “hates the press” and that Obama is the “greatest enemy to press freedom in a generation.” Susan Page of USA Today recently claimed that the Obama White House is “more dangerous” to the press than any other White House in history.

The resignation of Attorney General Eric Holder has led to another round of criticism of the administration’s treatment of journalists, as people reflect on Holder’s tenure. In a recent column in the Washington Post ominously titled “Holder’s Dark Legacy,” First Amendment lawyer David Schulz argued that the Obama administration has been “worse than Nixon” for freedom of the press.

So how did a liberal Democrat — and former constitutional law professor to boot – end up branded as one of the greatest threats to the free press in the nation’s history?

Attorney General Eric H. Holder, Jr.

Leak Prosecutions By the Obama Administration

Much of the criticism stems from the Obama administration’s aggressive prosecution of leakers of classified information. A popular talking point is that this administration has prosecuted twice as many leakers as all other administrations in history, put together. This is true, and sounds like a startling statistic, until you realize that the grand total of such prosecutions by the Obama administration is seven – and at least a couple of those cases were actually started during the Bush years.

That’s right: out of all the people who now call themselves journalists, all the media reports being filed every day, and all of the leaks constantly taking place, the Obama administration has summoned the vast prosecutorial resources of the federal government to wage “war on the press” by bringing a grand total of about one case a year. And of course those cases aren’t brought against journalists, but against federal employees who have violated their oaths to maintain classified information.

This slight uptick in leak prosecutions from a mere trickle to a slightly larger trickle is not really surprising. Security concerns in general have greatly increased in the post-9/11 world, causing the government to take certain leaks more seriously.

In addition, technology has made leaks potentially much more damaging. In the past, if sensitive information was leaked to a media outlet such as the New York Times, the government could usually depend on the editors contacting them about a potential story and at least listening to any security concerns the government had. Now, however, with the click of a mouse, a leaker can disseminate information worldwide instantly, with no need to go through any journalist, much less a “mainstream media” reporter. Little wonder that the administration is trying to head off such leaks before they even occur.

 

The Press Response to Leak Prosecutions

Most observers would probably look at this handful of leak prosecutions and conclude the administration is making at least a modest effort to protect national security by deterring disclosures of sensitive classified material. The press, however, looks at these prosecutions and sees an assault on the First Amendment. To them, these cases are not about plugging leaks but about attempting to muzzle journalists.

The press, of course, depends on leaks from confidential sources in order to fulfill their role of acting as a government watchdog and keeping the public informed. But cracking down on leaks is not the equivalent of waging war on the press. Leakers of classified information are, by definition, breaking the law. Despite the government’s efforts, such leaks continue at a robust pace. To some degree this is both inevitable and healthy, particularly given the amount of material the government classifies.

The press regularly receives leaks of classified information when they occur. But that doesn’t mean there is a First Amendment right to expect that federal employees will routinely violate their oaths — or that the government will always look the other way when they do.

Most members of the media presumably agree there are some core government secrets that need to be kept. No one would argue, for example, that a government employee should be able freely to leak the identity of covert government agents overseas, or planned military operations during time of war, or similarly vital national security information.

If the press deems leak prosecutions an assault on freedom of the press, the logical implication of that position is that leakers should never be punished. But if leakers could act with impunity, then rules protecting classified information would be toothless and impossible to enforce and national security would be at risk. If a leak is serious enough, then investigation and prosecution have to be an option. The target of such cases is the leak, not journalism itself, and a leak prosecution is not an attack on the press.

Leak prosecutions by the Obama administration have caused journalists concern

Seeking Information from Journalists

A related aspect of this controversy is that investigations of leak cases sometimes require seeking information from journalists. As I’ve noted elsewhere, leak cases are different from most investigations. If a confidential source leaks information to the press about some criminal misconduct at the Pentagon, for example, a prosecutor who wants to investigate that misconduct has no need to talk to the reporter or discover the reporter’s source. When a source is merely reporting misconduct by others, the government has tremendous power through the grand jury to investigate that misconduct directly.

In a leak case, however, the potential criminal misconduct is the source’s disclosure of classified information. The conversation with the reporter is itself the crime being investigated. The source is the target of the investigation and frequently the reporter is the only direct witness. In such cases, in order to prove the crime beyond a reasonable doubt, it may be necessary to seek information from the reporter in the form of e-mail or phone records or even testimony about the source’s identity.

The cases in which this happens are extremely rare. Under Department of Justice guidelines, information may be sought from a reporter only as a last resort, and only after multiple levels of approval. When it happens it’s almost always in a leak case – and even in many of those, the government manages to prove the case without seeking any information from the journalist who received the leak.

In the rare case in which the government does seek information from a journalist, however, the reaction of the press generally borders on the apocalyptic. Any such efforts are seen not as steps to prosecute the leak, but as an attack on journalism itself. For example, despite the Fourth Circuit Court of Appeals ruling that he is a critical government witness in the prosecution of Jeffrey Sterling, James Risen has repeatedly claimed he has been subpoenaed because the government is trying to punish him for his reporting. Risen is currently on a tour promoting his new book, where he regularly talks about his supposed status as a victim of government persecution and how it is evidence that Obama “hates the press.”

(As an aside, although Risen apparently believes the government officials who are supposedly “after” him are quite corrupt, he must not think they are very creative. As his case demonstrates, prosecuting a source is a lousy way to punish a journalist. It will be incredibly slow, as the reporter’s employer hires top-notch legal talent to spend years in court battling the subpoena. It will also turn the reporter into a martyr and folk hero within the journalism community, resulting in speaking gigs, journalism awards, and great material for a book tour — as the saying goes, you can’t buy that kind of publicity. If the source ends up pleading guilty, as about 95% of criminal defendants do, or if the case otherwise goes away, then the reporter will never be called to testify and will never risk being punished for contempt at all. If this administration really is “worse than Nixon” and is motivated by a desire to punish Risen, you might expect them to sic the IRS on him or use some other more efficient and effective method.)

It’s remarkable to me how the press — with a few notable exceptions such as the Washington Post’s Walter Pincus — loses all perspective over any government investigation that touches in any way on their activities. There tends to be no recognition of competing interests or the possible need to compromise. It reminds me of the National Rifle Association, which usually responds to even the most modest gun control proposal with overblown claims that the Second Amendment is under assault and the government is coming to take your guns. What the government sees as an attempt to improve public safety, the gun lobby sees as an all-out assault on the right to bear arms.

Similarly, what the government sees as an attempt to stop damaging leaks of classified material, the press sees as proof that the administration is an enemy of the First Amendment. (“Obama is coming to take your newspapers!!”). The press are usually quick to call out other groups that make such overblown claims, but seem unable to apply that same media spotlight to themselves.

The Truth About the “War on the Press”

There’s another saying that in any war, truth is the first casualty. The truth about the alleged “war on the press” is that these leak cases are not about the press at all. They are about investigating crimes involving potentially grave harm to national security, where journalism occasionally gets caught in the crossfire. The government prosecuting about one such case per year poses no threat to the First Amendment or to our robust free press.

For more than two centuries there has been a healthy tension between the right and obligation of the free press to inform the public and the legitimate need of the government to keep secret certain vital information. In general this push and pull – with the government trying to keep some secrets and the press trying to ferret them out – is healthy for our democracy. This tension flares up from time to time in skirmishes such as those involving Risen, but an occasional skirmish is not a war.

Update 12/13/14:  According to press reports today, Attorney General Holder has decided that the Department of Justice will not seek to compel Risen to identify his source, despite having fought for three years to enforce the subpoena. If this were indeed a war, you’d have to call that decision an unconditional surrender.

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Is NY Times Reporter James Risen Just “Doing His Job?”

Updated 12/13/14 – see below.

In an article in the Washington Post on October 10, Matt Zapotosky repeated the often-heard claim that New York Times reporter James Risen is facing jail or other penalties for simply “doing his job.”

Journalists being punished for doing their jobs?  Sounds like something that happens in totalitarian countries, not in the land of the First Amendment.  What’s going on here?

A little background: James Risen is a Pulitzer-prize winning reporter who focuses on national security issues.  In 2003 a confidential source from the CIA leaked classified information to Risen about U.S. Government efforts to undermine Iran’s nuclear program.  Risen actually didn’t publish a story about it in the Times, but he used the information in a book he wrote in 2006 called State of War.

The government identified former CIA employee Jeffrey Sterling as Risen’s suspected source and indicted him for illegally leaking classified information.  He’s now facing trial in federal court in the Eastern District of Virginia.  Risen, as the recipient of the leak, is the only direct witness to Sterling’s alleged crime, so the government would like him to testify.  Citing a reporter’s obligation to protect the identity of his confidential sources, Risen has refused.

In a 1972 case, Branzburg v. Hayes the Supreme Court held that the First Amendment does not create a privilege that allows reporters to refuse to identify their sources, at least in criminal cases.  The U.S. Court of Appeals for the Fourth Circuit ruled that, based on Branzburg, Risen has no right not to testify, and the Supreme Court declined to hear Risen’s appeal.  As things stand right now, therefore, Risen is under subpoena to testify in Sterling’s trial, and he has no legal basis to refuse.  The government could choose to drop the subpoena but it’s unclear whether it will do so.

Typically, a witness who refuses to testify without a valid reason may be held in contempt of court.  The witness may then be jailed, or fined a certain amount per day, until he or she agrees to testify.  The penalty is intended to coerce the witness into compliance; witnesses jailed for contempt are said to hold the keys to their own jail cell, because they need only comply with the court order in question to be released.

Risen says he will go to jail rather than identify his source. This puts the Department of Justice in a bit of a pickle. As the Fourth Circuit noted, Risen’s testimony is critical to the prosecution because he is the only one with direct knowledge concerning the source of the leaks. The administration is trying to deter leaks of classified information that may harm national security, and clearly views this as a significant case.

On the other hand, this administration has faced substantial criticism for its supposed hostility to the press (most of that criticism coming from the press itself, of course).  Both President Obama and Attorney General Holder have said they don’t believe journalists should face jail for doing their jobs.  That seems indisputable – we don’t imprison reporters in this country for their reporting work.  Attorney General Holder apparently reiterated this just this week.

But that leaves open this question: would punishing Risen for refusing to testify be punishing him for doing his job?

It’s important to note at the outset that it is extremely rare for a journalist to be asked to testify about his or her sources.  The Department of Justice has very strict guidelines (recently made even stricter) governing when it will subpoena a reporter, and does so only as a last resort.  Risen is one of only a handful of such cases in recent memory. In the overwhelming majority of cases, therefore, journalists’ sources remain absolutely protected with no government interference.

It’s also important to recognize that Risen does not face punishment for any work directly related to reporting.  He has not been charged for talking to Sterling, for obtaining or publishing the classified information, or for any news gathering, writing, or publishing activity – the types of things we would normally regard as a reporter “doing his job.”  (In fact, although this point is frequently obscured, Risen hasn’t been charged with or prosecuted for anything – he’s merely a potential witness, not a defendant.)

It is true, though, that it is also part of a reporter’s job to protect the identity of confidential sources.  That practice has longstanding roots in the journalism profession.  Reporters believe their ability to promise confidentiality is essential to encouraging sources to come forward and reveal information without fear of reprisals.  But recognizing a general duty to protect sources only begins to answer the question.

Other professions, including lawyers, doctors, and clergy, also have a duty to protect the confidentiality of information communicated to them. These duties, however, all exist within the context of the overall obligations imposed by the legal system.  The understood subtext is that individuals will fulfill their obligations and do their jobs, including maintaining confidentiality of communications, to the fullest extent allowed by law.  All professions operate — or at least we hope they do — with the understanding that in carrying out their duties, the individuals within that profession will abide by the law.

For example, as a lawyer, I have a duty to protect client confidences, and doing so is definitely part of my job.  But if a court rules in a particular case that the attorney-client privilege does not apply and that I must testify about certain client communications, then as a citizen I have an obligation to abide by that order, even if I’m convinced that the court is wrong.

This rule doesn’t apply just to lawyers, of course.  Whether Risen has a legal right not to testify is a question of constitutional law and evidence.  In this country, those questions are decided by courts, interpreting either constitutional norms or statutes passed by a legislature.  Individual citizens don’t get to decide for themselves what the rules are or which laws they will follow.

Journalism operates within the context of our system of laws, not in some unique legal vacuum.  If a newspaper violates the libel laws it may be punished in the courts, and this does not violate the First Amendment.  A reporter could not hire a burglar to break into a politician’s home to steal evidence for a story and then claim he was only “doing his job” and should not be prosecuted. By the same token, journalists may protect the identity of their sources to the limits of the law, but are not free to defy the law when they disagree with the outcome in a particular case.

Journalists may argue that they are different because their duty of confidentiality is rooted in the critical First Amendment freedom of the press. (Put to one side, for now, the fact that the Supreme Court has ruled the First Amendment does not require a reporter’s privilege.) But other privileges have roots in the Constitution as well – the clergy privilege supports the free exercise of religion; the attorney-client privilege supports the right to counsel.  Even constitutional rights are never absolute – the classic example being that freedom of speech does not allow one to yell “fire” in a crowded theater.

In a pluralistic society, compelling interests, even constitutional interests, will sometimes clash — such as the interest in a vigorous, free press and the interest in deterring unlawful leaks of classified information that may damage national security. Sorting out those conflicting interests is the job of courts and legislatures. And the rule of law — or the social contract, if you will — means that we all agree to abide by those decisions.

So to answer the question: No, Risen does not face punishment for “doing his job.”   Risen’s job includes a duty to protect the confidentiality of his sources to the fullest extent allowed by law.  He has done that by taking his fight all the way to the Supreme Court.  The courts have ruled he must testify.  Risen’s job does not include deciding for himself what the law requires and flaunting legal rulings with which he disagrees.

Of course Risen has the power to refuse to testify — as do we all — but he does not have the right to do so.  If he chooses to defy the law and is punished that will not make him a hero or a martyr, although if history is any guide, his colleagues in the press will undoubtedly hail him as such.

Update 12/13/14:  According to news reports today, Attorney General Holder has decided that the Department of Justice will not seek to compel Risen to identify his source, despite having fought for more than three years to enforce the subpoena.