Posner vs. Bazelon: Should James Risen Have to Testify Against His Alleged Source?

The law, lawyers, and the court.
July 22 2013 3:54 PM

Secrets and Scoops, Part 2

Posner vs. Bazelon on the court ruling compelling writer James Risen to testify against his alleged source.

Reporter James Risen of the New York Times and author of the book, "State of War" speaks during a taping of "Meet the Press" at NBC studios January 8, 2006 in Washington, DC.
James Risen, New York Times reporter and author of the book State of War

Photo by Alex Wong/Getty Images

On Friday, a federal appeals court ruled 2–1 that New York Times writer and author James Risen must testify in the criminal case against Jeffrey Sterling, a former CIA author charged for leaking classified information. Sterling is accused of being the source for a chapter in Risen’s 2006 book, State of War, about a blown scheme by the CIA to trick Iranian scientists. University of Chicago law professor and Slate contributor Eric Posner and Slate senior editor Emily Bazelon argue over what the ruling means for press freedom and the Obama administration’s aggressive effort to plug leaks.

Emily Bazelon: Talk about awkward timing. After a spring of uproar in the media over the Justice Department’s broad grab of AP phone records in one leak investigation, and claim that Fox reporter James Rosen could be a criminal in another, the Obama administration has been trying to reassure the press that it will not be dragged into a mass hunt for government leakers. Attorney General Eric Holder just announced new guidelines that make it harder for Justice Department lawyers to grab reporters’ records. And the administration says it supports a bill that would shield reporters, in some cases, from having to reveal information about their sources and testify against them.

But now reporters—and their sources—have to swallow the unappetizing prospect that James Risen will either go to jail or testify against a source to whom he promised confidentiality. The U.S. Court of Appeals for the 4th Circuit says Risen’s identification of Sterling as his source is key to the government’s case and to winning a conviction. The phone and email records the Justice Department already has are just circumstantial evidence, the court said. They show Risen and Sterling regularly communicating in 2003, when Risen was reporting a story for the Times that the paper didn’t publish, but ended up in his book, but they can’t replace Risen actually pointing the finger at Sterling in front of the jury. Most importantly, the court ruled,  “there is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings.”

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The majority’s reasoning is straightforward, and I have to admit, I think we’re stuck with it. Congress has never passed a media shield law. (Most of the states have them, but in federal court, that’s not good enough.) And the Supreme Court, in its one and only decision that’s squarely on point, in the 1972 case Branzburg v. Hayes, rejected the idea that the First Amendment gives reporters (“newsmen” in the day) any special right to protect the confidentiality of their sources. Citing “the longstanding principle that the public ... has a right to every man’s evidence,” the court said it “would be frivolous to assert—and no one does in these cases—that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws.” In other words, protecting a source by refusing to implicate her is the same as breaking into her house to steal her laptop. Branzburg is actually messier than that, because of a confusing fifth-vote concurrence by Justice Lewis Powell. But the fact remains that reporters don’t have any clear right in federal court to stand by their promises to keep secrets, the way that lawyers and spouses and therapists do. That’s why Risen is now being ordered to testify, and it’s also why the Justice Department could help itself to weeks of phone records from hundreds of AP numbers.

I think Branzburg is a bad decision. When I read it with the law students I teach, we discuss how much it mattered to the court that one of the reporters in its case promised confidentiality to the Black Panthers. The police used him as a shortcut to infiltrate the group, but the justices who ruled against the reporter don’t seem to care about that. Instead, they stress that the Panthers advocated overthrow of the government.

Eric, when we debated the AP records grab in April, you were wholly unsympathetic to Risen and to the rest of the press. Do you have any second thoughts now? (I doubt it, but here’s hoping.) Is the government going too far in compelling Risen to testify? Or should reporters just get over our cherished hope that just like lawyers and therapists, we too are special, and have just as strong a basis for refusing to help the government go after people who have trusted us?

My fear about the Risen ruling, along with Obama’s record total of seven leak investigations, is that the public as well as the press will lose out, because the government officials who leak secrets will stop. You’re probably untroubled by that prospect. But when I look at the leak landscape, from Pfc. Bradley Manning’s mass disclosures on WikiLeaks to Edward Snowden’s revelations about the NSA, I see a lot more benefit to the public than specific harm to national security. Yes, I know, it’s hard to tell from the outside, but the government’s protestations to the contrary are frustratingly vague. I remain more concerned about the culture of government secrecy that has made classifying information increasingly routine than I am about the chinks in the secrecy armor. Where you think the pendulum is swinging on the arc of press freedom vs. government functioning, and what would it take for you to worry that reporters are at the mercy of prosecutors, and, now, the courts?

Eric Posner: The ball long ago fell off the string of the pendulum and rolled into the vault of the New York Times. Government officials referred 153 cases of suspected leaking to the Justice Department from 2006 to 2009. Zero led to an indictment. I’m sure the government fantasizes about a “culture of government secrecy.” The reality is that hardly anything it does is secret. WikiLeaks, Snowden, and the authors of an endless stream of best-selling books have laid bare sensitive details about counterterrorism and nuclear nonproliferation operations, military actions, espionage of foreign enemies, diplomacy, and much else.

If the law were applied in the normal way, we would have to conclude that numerous journalists are guilty of criminal law-breaking because they have aided and abetted the leakers—just as the driver of the getaway car is guilty of aiding the bank robbers. Yet, terrified of the political repercussions of a criminal trial of a journalist, no government has brought charges against journalists for aiding the violation of secrecy laws—an exercise of prosecutorial discretion that amounts to nonenforcement of the law. This is equivalent to President Obama’s decision not to prosecute Bush administration officials who were complicit in torture. Yet this time, the journalists who complain about an overreaching executive who defies Congress by picking and choosing among laws to enforce have switched sides.

Risen is not being prosecuted for his complicity in Sterling’s alleged crimes. His complaint is instead that the government seeks to treat him like any other witness of a crime, and compel him to testify in the trial of another. It is not enough for journalists to enjoy de facto immunity for their complicity in law-breaking. They must also be given a Ring of Gyges that allows them to aid the law-breaking of others while cloaked in invisibility.

In our earlier debate, Emily, I said that I saw the conflict between the government and the press as a “battle among equals.” Some commenters disputed my claim; the government, after all, has far more money and people than the press, not to mention guns. But the government cannot operate without the trust of the public, and it depends on the press to maintain that trust. This means it cannot alienate the press, which is why the government has not prosecuted reporters, and has furiously backpedaled in response to the press’s unhappiness about its AP subpoenas, as you mentioned.

But, at a more practical level, consider the lineup in U.S v. Sterling. On the U.S. side, we have the usual array of underpaid government attorneys. On Risen’s side we have a half dozen big-name law firms, numerous battle-tested public interest groups, and a battery of in-house lawyers representing 24 media companies. As impressive an array of corporate interests as one might see on the other side of an insider trading prosecution! This kind of legal firepower would be the envy of Goldman Sachs.

In our earlier debate, I also expressed my doubts as to whether the press can be trusted more than the government. My view is that the two institutions are equally trustworthy and untrustworthy, both motivated by a mixture of public spiritedness and personal ambition—but the leaders of the government are elected in a democracy, and the presumption should be that the laws they enact are enforced. No one has done a better job than confirming my speculations about journalists than Glenn Greenwald, who, not a traditional journalist and hence not socialized into the norms of that profession, had this to say:

“The U.S. government should be on your knees every day praying that nothing happens to Snowden, because if something happens, all information will be revealed and that would be their worst nightmare.”

Greenwald was passing along Snowden’s graymail threat to release additional secrets if the U.S. government did not buckle to his demand that he be excused from the legal consequences of his crimes. But the language is of more interest than its content: This is a journalist who is drunk with his sense of power.

Bazelon: The lawyers and firms supporting Risen reflect how important this case is to journalism, and I don’t see how a bunch of friend-of-the-court briefs, which is largely what they’re supplying, is going to have much effect on the outcome. The Fourth Circuit had no trouble setting aside all those powerful corporate interests. The government’s power to subpoena information and compel testimony trumps everything else, as long as the Justice Department is willing to use it. And it can’t be a coincidence that former Director of National Intelligence Dennis Blair showed up on the front pages on Saturday—the day after the ruling compelling Risen to testify—with his tally of many leak investigations and no prosecutions between 2006 and 2009. Clever pushback. But why only those dated numbers? What do we know about the facts behind Blair’s tally of 153 leaks? Shouldn’t there be some balancing of newsworthiness vs. harm to security in these cases, as Judge Roger Gregory of the 4th Circuit called for in his dissent?*

If I worked for the government, maybe I’d see the press as all mighty and disastrously irresponsible, the way you seem to. But to me what looms much larger is growing executive power, halting or weak-kneed oversight by congressional committees, and a march to classify anything and everything. The idea that journalists should be complicit rather than defiant in this shift is just anathema to me. Maybe this is just tribal. You say it’s no big deal for Risen to show up in court to point the finger at Sterling. After all, it’s the heart of the charges against the ex-CIA agent, and if that’s the only way to send a message that the government means business about plugging leaks, then Risen must play his part. To me, though, it’s a step toward turning journalists into the eyes and ears of prosecutors. I can’t think of any part I less want to play.  We’ve never had that kind of scary symbiosis in this country. We’re all better off—the public as well as the press—if we don’t start now.

Posner: If the numbers in the letter cited by the Times story are representative of the last four years, another 100 or more referrals have taken place since 2009, yet only six prosecutions, several of them left over from the Bush administration, and none of them ordered by President Obama himself, according to another Times story. I don’t want a symbiotic relationship between journalists and the government, either, but if the current level of deterrence is zero, then a few successful prosecutions will not turn us into a police state.

Journalists argue that they should not go to jail if they refuse to testify against a source to whom they promised confidentiality. They do not argue that Sterling himself should stay out of jail if convicted of unlawfully disclosing government secrets that he had agreed to protect. I find these positions difficult to reconcile. If the government can lawfully protect certain types of information, then it must be able to prosecute those who violate the law and those who help them to do so. If secrecy is anathema in our democracy, as some people come close to arguing, then Sterling should not go to jail, regardless of whether he fed his secrets to a journalist or posted them himself on the Web.

Thus, it is easy to see why the First Amendment argument for a media shield rule fails. Your argument is that if journalists are compelled to testify against sources, then sources will stop providing them with information, in which case the public will be inadequately informed and unable to vote the bums out if they so choose. But if we accept the underlying theory that the public has a First Amendment right to the disclosure of government secrets, then the prosecution of Sterling violates the First Amendment, as does any law that preserves secrecy—a position accepted by no court, government institution, or other authoritative source, and not by the public either.

You might argue that a media shield rule is a reasonable compromise between the interests in secrecy and disclosure. It would permit the government to punish leakers when the evidence is so overwhelming that testimony of journalists is unnecessary—thus deterring some disclosure without chilling the press. But the data tell us that since the government can rarely secure convictions without the involvement of journalists, the deterrence value of secrecy laws is nil. The law should not immunize leakers who disclose through the press while punishing others. Such a distinction makes no sense at all—though certainly one can see why it would be attractive to the press, who gain a monopoly over the pipeline through which the leaks flow. A better rule would give journalists and leakers alike a defense against prosecution—a “public interest defense”—if they disclose egregious and illegal government conduct, and I would be more sympathetic to your arguments if in fact the recent cataract of leaks had disclosed clearly illegal government activity. It has not.

Correction, July 23, 2013: This article originally misstated the first name of Judge Gregory of the 4th Circuit. (Return.)

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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