Journalist James Risen making his case in Washington, DC. Photo by the author
It was one of those frequent but still oddly satisfying moments when the duplicity of the executive branch of the US government is on full display.
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In a televised address from Martha’s Vineyard Thursday, President Obama declared that “police should not be bullying or arresting journalists who are just trying to do their jobs”. He was referring to the arrest of two reporters on Wednesday night in Missouri by the paramilitary clown brigade known as the Ferguson Police Department.
At almost exactly the same moment as Obama’s address, embattled New York Times journalist James Risen and several leading press freedom groups were pleading with the Justice Department to drop its years-long crusade to force Risen to reveal his confidential sources under threat of jail time.
Speaking at the National Press Club in DC, Risen called on the Obama administration to drop its case against him – assuming it has any respect whatsoever for the First Amendment.
“The Justice Department and the Obama administration are the ones who turned this really into a fundamental fight over press freedom in their appeal to the Fourth Circuit,” Risen said. “I’m happy to carry on the fight, but it wasn’t really me who started it.”
A federal grand jury subpoenaed Risen in 2008, and then again in 2010, for allegedly incorporating classified information he received from former CIA officer Jeffrey Sterling into a chapter of his 2006 book, State of War.
Risen refused to testify, citing his right to protect his sources, also known as “reporter’s privilege”. A lower court initially sided with him, but the Justice Department won on appeal. The Supreme Court declined to hear Risen’s case in June, and he will do time or endure heavy fines for civil contempt of court if he continues to resist the subpoena.
After years of pursuing the case, the Obama administration is now faced with a dilemma of its own making: whether to continue its crackdown on unauthorised leaks and lose the respect of the press, or live up to its lip-service on press freedom and alienate the angry men who run the intelligence community.
Since President Obama took office, his White House has charged more people under the Espionage Act – eight – than all previous administrations combined. But forcing a prominent journalist to confront jail time would be a different move altogether.
“I don’t think the US wants to join Cuba in becoming the only countries in the western hemisphere to have a jailed journalist,” Courtney Radsch, advocacy director for the Committee to Protect Journalists, said at the press conference.
Twenty Pulitzer-winning journalists issued statements of support for Risen this week, pointing out that he was just doing his job.
“As Presidents George W. Bush and Barack Obama classified more and more of the government’s actions over the last 14 years, denying the public critical information to judge how its democracy is faring, it has fallen to reporters like Risen to keep Americans informed and to question whether a gigantic government in the shadows is really even a good idea,” Washington Post reporter Dana Priest said in a statement. “We will all be worse off if this case proceeds.”
Risen’s supporters also delivered a petition on Thursday morning to the Justice Department with 100,000 signatures.
“Your effort to compel New York Times reporter James Risen to reveal his sources is an assault on freedom of the press,” the petition reads. “Without confidentiality, journalism would be reduced to official stories – a situation antithetical to the First Amendment. We urge you in the strongest terms to halt all legal action against Mr. Risen and to safeguard the freedom of journalists to maintain the confidentiality of their sources.”
Whichever choice the Obama administration makes will leave a lasting mark on its legacy. It will also have implications for a federal “shield law” bill currently moving through the US Senate.
The bill was revived last year after revelations that the Justice Department secretly subpoenaed phone records from the Associated Press in an attempt to root out leakers. It has passed through the Senate Judiciary Committee but has yet to make it to the floor for debate.
Facing intense backlash from the media after the AP scandal, the White House came out in support of the shield law bill, even as its Justice Department continued to press the Risen case.
Shield law advocates hope that, if Risen is held in contempt of court, it will at least give the Senate bill enough momentum to pass in the scant time before the current legislative session ends.
Although 48 states have enacted some kind of shield law protecting journalists from being compelled to reveal their sources in court, there is no such federal statute.
“My oldest son Tom is a journalist, and I want to make sure the same protections I had are still there for future journalists,” Risen said.
The Justice Department did not respond to calls and emails from VICE seeking comment. However, spokesman Brian Fallon did tweet his support for the two reporters arrested Wednesday, The Huffington Post’s Ryan Reilly and Washington Post’s Wesley Lowery.
“DOJ is lucky to have a gutsy reporter like Ryan J. Reilly on our beat,” Fallon tweeted. “We knew that even before tonight. Glad he and Wesley Lowery are ok.”
“How do you distinguish between the ‘gutsy’ reporters and the one the administration is threatening to put in jail?” CNN’s Jake Tapper shot back in a tweet of his own.
Fallon did not respond.
