James Risen, the New York Times reporter, asked the Supreme Court on Monday to take his case. Risen doesn’t want to be forced to tell a jury whether Jeffrey Sterling, a former CIA agent, was his source for a chapter in his book about a botched CIA operation to sabotage Iranian nuclear research. If Risen must testify, Sterling will probably go to jail, and maybe other sources will not talk to Risen or other reporters. Too bad: Whether or not the Supreme Court takes the case, Risen should lose.
Risen did in fact lose in federal appeals court, and as Emily Bazelon and I have agreed, that ruling reflects established law that reporters lack a privilege, in federal court, protecting them from being compelled to testify about their sources in criminal trials. But the Supreme Court can change the law, and so it is worth revisiting the question (about which we disagreed) as to whether the Supreme Court should create such a privilege.
In his brief to the Supreme Court, Risen quotes Judge Roger Gregory, who took his side at the appeals court and who puts the argument in favor of a reporter’s privilege succinctly:
If reporters are compelled to divulge their confidential sources, the free flow of newsworthy information would be restrained and the public’s understanding of important issues and events would be hampered in ways inconsistent with a healthy republic.
However, it is hard to reconcile this argument with the underlying criminal law here: The source himself must be punished if he is caught. If the free flow of newsworthy information is all that matters, then CIA agents like Sterling should be allowed to disclose newsworthy information rather than being prosecuted for doing so. Yet Risen does not argue that CIA agents who disclose government secrets should go free; no one does. The law provides limited channels for whistle-blowers. They may be inadequate, but Sterling did not pursue them.
That being the case, you might also think that reporters who publish such disclosures could themselves have acted criminally—by aiding and abetting a crime. The government has never prosecuted reporters on such a theory, however; all that it wants is for them to testify so that it can convict a leaker like Sterling, just as any other witness to a crime must testify in court. And so if we agree that the government can legitimately prosecute Sterling for disclosing information, then we ought to agree that the government can legitimately compel Risen to disclose at trial whether Sterling was his source.
There is only one way that journalists can escape this logic: by arguing that we can trust journalists to use their judgment to make only disclosures that serve the public interest. The idea is that they’re different from their sources in a way that promises reliability: A leaker could be vengeful or anti-social or anti-American or just careless, but a reporter will be cautious and prudent and professional and patriotic. If the leaked information should remain secret, it is safe in the journalist’s hands. “Don’t trust the government,” says the press. “Trust us instead.”
But the press has not earned our trust. According to the Princeton political scientist Rahul Sagar, in his recent book, Secrets and Leaks (which I reviewed for the New Republic), the New York Times initially withheld publication of a story about National Security Agency surveillance written by Risen and his colleague Eric Lichtblau in 2005 because it was convinced that disclosure of the program would harm national security. The paper reportedly changed course, however, when it became clear that Risen would go ahead and publish the story in his own book anyway. When the Times’ public editor at the time submitted questions to the paper’s editors about their decision-making, they did not respond. (“The Times later said that further reporting strengthened the story enough to justify publishing it,” according to current public editor Margaret Sullivan.) And when the Times subsequently learned in 2006 about the Department of Treasury’s method of monitoring international monetary transfers for evidence of terrorist financing, it disclosed the program, even though there was no evidence of any sort that the government was doing anything illegal or wrong. (Risen was one of the reporters on that story, too.)
The incentives of journalists are every bit as bad as the incentives of people in government. Government officials want to conceal programs, no matter how disastrous they are; journalists want to disclose them, no matter how valuable they are. They do not get Pulitzers for patriotically declining to disclose the existence of secret programs, however useful.
So if the Supreme Court were to create a reporter’s privilege, it would encourage leaks that ought to be plugged. Congress has passed no media shield law in part because of this concern. Risen and other journalists complain that the Obama administration has acted with unprecedented aggression by demanding the testimony of journalists in numerous cases, but this reflects the government’s desperation to stop leaking, not a new Orwellian agenda. New digital technology has greatly favored the leaker over the government: It would have been impossible for Edward Snowden to download 1.7 million files onto a thumb drive 20 years ago, or for Chelsea Manning to download hundreds of thousands of State Department cables, and then to post these classified documents on the Web where anyone can see them. The changing technological terrain justifies the Justice Department’s decision to enforce the law.
Leaking has also become such a problem because the government needs a vast unwieldy bureaucracy to supply the level of protection from terrorism that the public demands. It screens people before hiring them. It trains them. It monitors their computers. But secrecy law provides a vital tool for deterring disclosures when these other methods fail. A reporter’s privilege that makes it harder for the government to prevent leaks just means that the government will redouble the screening, training, and monitoring. If it succeeds, we’ll have as little of the “free flow of newsworthy information” as we ever did, except at much greater cost to the taxpayer with ever more complicated, redundant, and awkward bureaucratic controls.
A balance must be struck, and one compromise would be to allow a leaker to defend himself by proving that he disclosed grave wrongdoing. If that were the rule, instead of a reporter’s privilege, a leaker who acts in the public interest—and only that kind of leaker—would escape prosecution. That’s who should benefit from the law, not the journalist who profits from him.