In the prosecution of former CIA officer Jeffrey Sterling, yesterday the Obama administration assailed the "reporter's privilege" (which it insists on putting in scare quotes) in front of the Fourth Circuit Court of Appeals. Even the most conservative court in the country had its doubts about what the Justice Department was peddling.
The Justice Department argued that Jim Risen of the New York Times should be forced to testify against a source (Sterling), who is alleged to have provided information to Risen about a botched CIA program called "Merlin" in which we gave flawed nuclear information to Iran. . .but whoops . . . the flaw was so obvious that the Iranians detected the ruse and we actually ended up giving them useful nuclear design information.
Risen has been subpoenaed three times (once by Bush and twice by Obama). The important point here, in Risen's own words, is
whether you can have a democracy without aggressive investigative reporting and I don't believe you can.
The war on journalists is a piece with the war on whistleblowers. Obama's war on whistleblowers is pernicious way to create bad precedent for going after journalists. All the Espionage Act cases involve allegations that the government employee “leaked” information (or retained information for the purpose of leaking it) to journalists.
The reporter's privilege issue turns largely on the Supreme Court's landmark Branzburg v. Hayes decision in which Justice Lewis Powell's concurrence emphasized the "limited nature" of the decision against the reporter when he stated:
The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.Powell's opinion has been interpreted by several lower courts as an indication that reportorial privilege does indeed exist, but was simply not warranted in the specific case of Branzburg.
In the Sterling case, when Judge Robert Gregory asked the Justice Department (DOJ) attorney to explain why the circumstances in Sterling's case was outweighed by the public's interest in a free press, the DOJ attorney said
I don't think there would be a balancing test because there's no privilege in the first place.The DOJ attorney went so far as to argue that what Risen did was analogous to a journalist receiving drugs from a confidential source and then refusing to testify about it. The Judge had to explain that Branzburg involved the witnessing of a different crime (which would be a situation where a journalist can be forced to testify), "not the disclosure itself."
At stake in the war on whistleblowers and journalists is, in the words of Judge Gregory,
[T]he people's right to know. . . We need to know what the government is doing. The king never wants to disclose.While the Bush administration had great contempt for whistleblowers and journalists, the Obama administration has been far worse. It is actually prosecuting them (whistleblowers) and subpoenaing them (journalists) with the threat of being held in contempt of court and going to jail This is occurring under the Espionage Act — one of the most serious charges that can be leveled against an American. The Espionage Act is an archaic World War I-era law meant to go after spies, not whistleblowers. Strangely, using it to target the media and sources is the brainchild of neo-conservative Gabriel Schoenfeld, who would have sources who disclose information to reporters, journalists who then write about it for newspapers, the newspapers that publish the information and the publisher itself all be held criminally liable.
Is that the kind of country we want to live in, basically one with a government-run propaganda press? The Justice Department needs a remedial civics course. Re-read the First Amendment, especially the Press Clause.
Right now we have a strangled and compromised press, but at least its still free.