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The New York Times reports on the latest in the war on journalists:

A federal appeals court on Tuesday declined to hear an appeal by James Risen, an author and a reporter for The New York Times, who was ordered in July to testify in the trial of a former Central Intelligence Agency official accused of leaking information to him.

The decision, by the full United States Court of Appeals for the Fourth Circuit, is expected to set up an appeal by Mr. Risen to the Supreme Court in what has become a major case over the scope and limitations of First Amendment press freedoms.

The Justice Department's continued aggressive pursuit of Risen demonstrates that the Obama administration's promises to better protect the freedom of the press do not apply when the Justice Department decides to chill national security reporting. The Justice Department chose not withdraw its subpoena, and argued against further review of the decision ordering Risen to testify about his source. Risen has commendably said he will choose jail over betraying a source:
Mr. Risen has said he would go to prison rather than comply with a judicial order to testify about his sources, and on Tuesday he said, “I am determined to keep fighting.”

I've said for years that the Obama administration's unprecedented use of the Espionage Act to prosecute so-called "leakers," who are usually whistleblowers, for alleged mishandling of classified information is an attack on the press. The attacks on the press escalated after DOJ seized the Associated Press phone records potentially impacting 100 AP journalists and accused Fox journalist James Rosen of being a co-conspirator to violate the Espionage Act simply for doing his job.

The media's legitimate, albeit a bit late, outrage prompted movement on a Reporter's Shield bill. The Obama administration supports the bill, which contains a gaping exception for national security reporting, the very journalists who the Justice Department is targeting. The proposal would also only protect certain "professional journalists" rather than acts of journalism, excluding a vital segment of the journalistic community in today's climate: bloggers and freelance writers. If Obama wants credit for supporting for a free press, then the administration should start taking responsibility for its anti-speech actions like the unprecedented use of the Espionage Act to pursue so-called "leakers," who are really whistleblowers and the Justice Department digging into journalists' phone records in apparent violation of its own regulations.

The dissenting opinion in the Risen case articulated its importance:

Judge Gregory wrote a brief dissent reprising his view that reporters should have some legal protection from being forced to testify against an alleged source. Calling the issue raised by the case one of “exceptional importance,” he said that for “public opinion to serve as a meaningful check on governmental power, the press must be free to report to the people the government’s use (or misuse) of that power.”

He also wrote that “some reporters, including the one in this case, may be imprisoned for failing to reveal their sources, even though reporters seek only to shed light on the workings of our government in the name of its citizens.”

The Obama administration's declared support for the idea of free press is regularly abandoned in practice, and loses all credibility when Justice Department departs from the idea so dramatically as to spy on and intimidate journalists like Risen.

Even former National Security Agency (NSA) Director Michael Hayden has been forced to admit the the Justice Department's prosecution of NSA whistleblower Thomas Drake went too far:

"Prosecutorial overreach was so great that it collapsed under its own weight."
Hayden expressed his new-found criticism of the Drake prosecution in a report from the Committee to Protect Journalists, which succinctly concluded:
U.S. President Barack Obama came into office pledging open government, but he has fallen short of his promise. Journalists and transparency advocates say the White House curbs routine disclosure of information and deploys its own media to evade scrutiny by the press. Aggressive prosecution of leakers of classified information and broad electronic surveillance programs deter government sources from speaking to journalists.
Small adjustments like re-working of internal regulations and lukewarm support for a far from perfect Reporter's Shield law are nowhere adequate when the Obama administration needs to completely change course.
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