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.