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New York Times reporter James Risen just filed a motion to quash a grand jury subpoena for him to testify about the identity of his confidential source(s) at the trial of whistleblower Jeffrey Sterling under the Espionage Act.

The motion is as striking for what it DOESN'T SAY (or more aptly, what you CANNOT READ) as for what it does.  Over half of its 48 pages of text are redacted.  7 are redacted in their entirety.

I can't help but be struck by the similarities of the arguments made by Risen and the issues in the recently-collapsed prosecution of NSA whistleblower Thomas Drake.  I guess with Risen, the government is hoping the third time's the charm, because it has demanded (unsuccessfully) that Risen reveal his confidential sources(s) on this same subject two times before.

James Risen, who has twice won the Pulitzer Prize for his investigative reporting, has been subpoenaed to testify about his source(s) in the trial of Jeffrey Sterling, a CIA whistleblower.

The information at issue revealed a botched CIA effort called "MERLIN," designed to provide Iran with flawed nuclear design information.  But the flaw was so obvious the Iranians spotted it, and it turns out, we ended up providing them useful nuclear weapons information.  Whoops!

In addition to citing the reporter's privilege rooted in the First Amendment and recognized under federal common law, Risen argues that this is

part of a continuing pattern of government harassment of and retaliation against Mr. Risen for reporting stories that exposed excessive government secrecy and potential wrongdoing under the Bush Administration.
 The same thing can be said about the Drake case.

I would add, however, that in the Risen/Sterling and Drake cases these men also embarrassed the government.

The ulterior purpose of this subpoena, which runs contrary to the Justice Department's own guidelines on subpoenaing reporters (that you only do it as a last resort), is evidenced by the fact that the government already knows who Risen's source is.  This rivals the bad-faith in the Drake case, where the government already knew that some of the "classified" information it was charging him with retaining was marked UNCLASSIFIED before it indicted him.

And the evil genius behind these cases: Prosecutor William Welch II (the prosecutor who botched the prosecution of Senator Ted Stevens of Alaska), fully backed by his sponsor, Lanny Breuer--the head of the Justice Department's criminal division--and Attorney General Eric Holder.

The Supreme Court has made it clear that in cases where there is evidence taht the subpoena is brought in bad faith to harass, intimidate, or silence a journalist, thee subpoena must be quashed.  I wish I could say there was a similar precedent for dismissing criminal prosecutions.

The real purpose: Expand the secrecy regime by sending a message to reporters and whistleblowers: If we can go after people of the caliber of Jim Risen and Thomas Drake, we can go after anyone.

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Comment Preferences

  •  I call again for Eric Holder to resign (2+ / 0-)
    Recommended by:
    PhilK, Words In Action

    as if that makes any difference! These people suck.

    •  Both BUSH and OBAMA have undertaken this (8+ / 0-)

      impremissible course of conduct.

      The current subpoena is issued by a new Administration (Obama's), which makes it feel even worse. . . because, again, it's a continuation of Bush.

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Wed Jun 22, 2011 at 10:33:14 AM PDT

      [ Parent ]

    •  Holder has opposed objectionable things (1+ / 0-)
      Recommended by:

      that Obama has decided to do: keep Guantanamo open, try KSM in civilian court, follow the War Powers Act with respect to Libya.

      And there's no reason to think Obama has not approved the bad things Holder has done.  Obama's fingerprints are all over this vendetta against whistleblowers and leakers.

      If Holder is bad, Obama is worse.

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Wed Jun 22, 2011 at 01:03:02 PM PDT

      [ Parent ]

  •  The Judge (4+ / 0-)

    quashed the last subpoena for Risen to reveal his source.  The total unraveling of the prosecution's case against Tom Drake should have sent the message that going after media sources using the Espionage Act is an ill-conceived approach.  But, it seems the Justice Department is now going after the media to prosecute Sterling.

  •  This is how people like me lose our (6+ / 0-)

    confidence in the system.

    I liked Obama. I donated money for the first time in my life, although unemployed, to his campaign. I worked for his campaign - also a first for any election, of any candidate, for any race, in my then 41 years.

    And so much has not changed; most of all the secrecy.

    I don't want to take it out on Obama, maybe because I can't stand to admit that I was duped; that all politicians really are the same, that nothing will chnage, and that the status quo is that..status quo.

    Is it possible, Jesselyn, that the first thing which happens to any newly elected president is to "show him where the bodies are buried" - and show him how easily he can be Jimmy Hoffa'd to the bottom of the pile? Is this how they quickly prove to him that although a figurehead leader, he truly is at the mercy of powers he dare not challenge - and that such secrecy, duplicity, and sickening status quo is the best any person can manage as president - because the "powers that be" which go unseen will never allow anything else?

    Is the system in fact so big, so rigged, that no matter who we elect, this is "as good as it gets"???

    Thanks for this diary.

    Re: your tagline.

    I have a saying of my own, I live in the heart of Anthracite mining land (NE Pennsylvania) so I know the history of deep vein mining;

    "The idea behind taking a canary into a mine is that you're supposed to take an animal that is itself so week and frail that if it starts to wilt, that will be your sign to get the hell out before whatever killed the bird overcomes you next. In America, the macho/patriot mentality has become so blind that they are now taking ostriches down into the mines that are bigger than the miners because they got tired of runnign back for a new bird every time the old one keeled over.

    Now they don't realize that by the time the 'warning bird' goes down, things will be so bad they will aready have long since overcome themselves..."

    hoo Rah.

    George Orwell is banging on the lid of his coffin and screaming, "1984 was a cautionary tale, you dolts, not a motivational speech!"

    by snafubar on Wed Jun 22, 2011 at 10:45:58 AM PDT

    •  Also contributed to, campaigned & voted for Obama (5+ / 0-)

      I think he was elected with tremendous political currency and could have stood by his promises.  

      Not upholding those promises is one thing.

      Doing the opposite is far worse.

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Wed Jun 22, 2011 at 11:28:49 AM PDT

      [ Parent ]

      •  answered my question, I guess (1+ / 0-)
        Recommended by:

        Do you have insight on why - given that the Right hates him with more vengeance and vitriol than seen in generations - Obama would be so cavalier to those on the Left who worked so hard (and still do) to stand up to the Right?

        We haven't seen anything as brazen as the US Attorney's scandal under Bush (being purely politically motivated), is this hard-tack on whistleblowers something innate in the mechanics of our government that simply will always persist, or would President Obama have something to gain (or not enough to lose) by belittling how much of the Left support he is losing by not embodying "change" in these areas?

        I'm simply curious/frustrated that a guy who campaigned on change can accomplsh so little of it, and I'm still hoping (although feeling embarassed more by the day) to give him some plausible justification for how things look the same.

        I thought Kali Joy Gray's "you're still firing people for being gay" was the kind of question that could be asked in various forms to every department under Obama that sold us "change" and left us wondering when and if we'll get it.

        When Bush said shamelessly "I earned political capital and now I'm gonna spend it" - you raise a troubling question: Obama legitimately had far, far more of that currency in the bank and he's invested/spent little of it you have any suggestion why?

        Were we really all sold out that easily? And for what?

        George Orwell is banging on the lid of his coffin and screaming, "1984 was a cautionary tale, you dolts, not a motivational speech!"

        by snafubar on Wed Jun 22, 2011 at 11:41:51 AM PDT

        [ Parent ]

        •  Bogus charges agaist Obama are a way (2+ / 0-)
          Recommended by:
          keikekaze, snafubar

          for the plutocrats to use a kabuki conflict between the parties to hide from the people the fact that they (the plutocrats) run both parties.

          The influence of the [executive] has increased, is increasing, and ought to be diminished.

          by lysias on Wed Jun 22, 2011 at 01:06:10 PM PDT

          [ Parent ]

          •  So I guess it really is that bad (0+ / 0-)

            and keeping the masses still frothing over "socialism" "communism" "fascism", terrorists and their next meal and how to heat the house will keep them from ever gathering with pitchforks and torches to drag the oligarchs out to meet their "Ceausescu moment".

            George Orwell is banging on the lid of his coffin and screaming, "1984 was a cautionary tale, you dolts, not a motivational speech!"

            by snafubar on Thu Jun 23, 2011 at 06:52:50 AM PDT

            [ Parent ]

    •  A brave man would defy the threateners (0+ / 0-)

      to do their worst.  There are, after all, worse things than dying.

      Why have we had so few brave presidents?  Was JFK the last one we had?

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Wed Jun 22, 2011 at 01:04:56 PM PDT

      [ Parent ]

  •  Not so much an Obama continuation of (1+ / 0-)
    Recommended by:

    Bush legacy as it is a continuation of the policies of the shadow intelligence government that started with the expansion of the CIA under Eisenhower's administration. By now the entire intelligence budget is probably double the $55 billion eaten by the CIA. This in addition to extralegal sources of income mention of which gets a CT scold around here. Its easier to see how Pakistan and Turkey are partly ruled by their Intelligence services like the USSR was too. But in each case the military serves/served somewhat as an opposition force due to different objectives which allows both agencies to be observed for what they do. This country does not have that tension and what little DOD intelligence was strengthened by Rumsfeld led to the computer files being open to whom ever passed them to Wikileaks.

    I don't dislike all conservatives... mainly just the ones that vote Republican.

    by OHdog on Wed Jun 22, 2011 at 11:16:41 AM PDT

  •  Interesting that they picked Welch (0+ / 0-) who plays aggressively but narrowly misses the winning catch. Maybe he's the best they have.  But, can't help thinking he would be a perfect choice for someone who only wanted to look tough.

  •  One theme to the redactions (1+ / 0-)
    Recommended by:

    The line of argument is

    1) the information sought is protected by the reporter's privilege, and
    2) this all really stems from a government effort to harass and intimidate a vocal government critic.

    The second part, that the government is harassing a government critic here, seems a major focus or theme to the redactions.

    That is, the government is redacting out the embarrassing details of the claims that it is harassing a critic who has embarrassed it.

  •  "The Most Dangerous Man in America" (3+ / 0-)

    Thank you, Jesselyn for your work. While I don't comment much, I always read your diaries.

    I wonder what would happen to Daniel Ellsberg in today's climate? I searched for a long time to find this video. Most of the web has been scrubbed of the film citing copyright issues.  Luckily, I found this. Watch it while you can. I'm more than certain it will be taken down soon.

    Uploaded by NeilCrouse on Jun 13, 2011

    In 1971, Daniel Ellsberg, a top military strategist working for the RAND Corporation, leaked a 7,000-page document known as "The Pentagon Papers" to the New York Times.

    Disenchanted with the nation's conduct in Vietnam, Ellsberg believed the release of the top secret paper--which outlined the 'secret history' of the war--was crucial to educating the public about the government's lies and misdeeds.

    This documentary chronicles the media and political frenzy that Ellsberg unleashed, and traces the effect of the leak on public perception of both the war and the White House.

  •  Waiting for the apologist spin (0+ / 0-)

    on this one.

    This administration simply DISGUSTS me.

    People Have the Power. Let's Use It! Start by burning the damn deck chairs already. Sheesh.

    by Words In Action on Wed Jun 22, 2011 at 05:54:09 PM PDT

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