On Monday the U.S. Supreme Court its expected to announce whether it will hear a case raising the most fundamental and vexing First Amendment dilemma of our day.
The case is that of James Risen, a Pulitzer Prize winning New York Times reporter who published a book in 2006 about alleged Central Intelligence Agency abuses. He has been subpoenaed to testify at a criminal trial against Jeffrey Sterling, an ex-C.I.A. agent whom the government believes was one of Risen’s sources.
The case poses the question of whether the First Amendment or federal common law provide any protection to a reporter who has promised to protect the confidentiality of his sources, promises that are crucial to emboldening whistleblowers to speak out about concealed wrongs of great public moment. (Disclosure: I went to high school with Risen, but didn’t know him. Last year we met briefly for the first and last time at a—wince—40th high school reunion.)
Risen’s case is not an easy one. Few Supreme Court cases are. But the timeliness of his case, and the aching need for the Court to weigh in, are painfully apparent. Every reporter who won a Pulitzer Prize this year for reporting the leaks of Edward Snowden would be—without a shadow of a doubt—in Risen’s shoes were it not for the rare twist that Snowden chose to reveal his own identity (after fleeing the country).
Risen’s case contains all the standard criteria that cry out for Supreme Court review. Precedents from at least five appeals courts appear to conflict with the reasoning employed by a split panel of the U.S. Court of Appeals for the Fourth Circuit in Risen’s case last July, when it ordered Risen to testify. The order reversed the July 2012 decision of a district judge in Alexandria, Virginia, who had quashed the subpoena. The Supreme Court has not heard a case touching on these issues for 42 years, which is precisely the reason the lower courts are now so at sea in terms of how to handle them.
In the Court’s last pass at these issues, its 1972 ruling in Branzburg v. Hayes, a 5-4 majority seemed to hold that reporters were just out of luck when it came to a grand jury subpoena seeking their testimony. They had to give up their sources, Justice Byron White wrote for the majority, regardless of the value of the information the source had supplied to the public, and regardless of whether the government really needed the reporter’s testimony to make its case.
But the bright-line rule announced by Justice White was always seriously smudged by the enigmatic concurring opinion of Justice Lewis Powell. On the one hand Powell fully joined White’s opinion, but on the other he undermined it, insisting that the majority ruling still permitted the use of a balancing test in some cases.
“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,” Justice Powell wrote. “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. In short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.”
Powell’s puzzling opinion has had lower court judges scratching their heads ever since, leading to an array of contradictory precedents across various federal appeals courts and state supreme courts. (Justice Potter Stewart, who wrote the dissenting opinion in Branzburg, later wrote in a law review article that the case had been decided “by a vote of four-and-a-half to four-and-a-half.”)
Further clouding the situation is the fact that three years after Branzburg was decided, the Federal Rules of Evidence were amended in a way that invited federal judges to develop a common law—i.e., judge made law—concerning evidentiary privileges. Citing this rule, for instance, the Supreme Court recognized a psychotherapist-patient privilege for the first time in 1996. The case for recognizing a federal common-law reporter’s privilege at this point is strong. At the time Branzburg was decided, only 17 states recognized any reporter’s privileges, whereas 49 states and the District of Columbia do so today. In fact, the United States is now said to be only Western democracy not to afford such a privilege, according to an amicus brief submitted on Risen’s behalf by the International Women’s Media Foundation. (About two dozen press organizations have also joined an amicus brief supporting Risen’s petition.)
Reporter’s privileges, I should stress, do not typically bestow blanket immunity on reporters from subpoenas. On the contrary, reporters often still end up having to testify, especially in criminal cases. But these “qualified” privileges do at least ensure that a judge will hear the facts of each situation and then balance the equities, weighing the prosecutor’s need for the testimony against the public's interest in having confidential sources tell reporters about concealed wrongdoing.
Importantly, the facts of Branzburg were markedly different from those presented by Risen’s case. In Branzburg, which was a consolidation of several cases, the lead case involved a reporter at the Courier-Journal, in Louisville, Kentucky, who wrote about two individuals who had showed him how they synthesized hashish from marijuana, which they then sold for $5,000. Another reporter had written a story describing his experiences inside a meeting of the Black Panther Party, at a time when a party officer was publicly vowing, “We will kill Richard Nixon.”
While such “you-are-there” accounts have their value, it is easy to see how Justice White, writing for the majority, could give those journalists the back of his hand: “We cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source . . . on the theory that it is better to write about crime than to do something about it.”
In Risen’s case, though, and in the cases of reporters covering the Snowden affair, the crime the prosecutors are investigating is not conventional street crime. The crime being investigated is the act of telling a reporter about alleged government misconduct. Now the government may have good reasons for wanting to punish such conduct, like protecting national security secrets and the lives of its agents. But it might also have bad reasons for doing so, like concealing widespread unconstitutional abuses and avoiding embarrassment. That’s why it’s so crucial to have a judge at least engage in a fact-intensive, case-by-case balancing test when confronted with such situations. In this setting, if no source ever breaks the law, no reporting is possible concerning issues of surpassing public importance. (The dissenting judge on Risen’s appellate panel noted that “it is hard to imagine many subjects more deserving of public scrutiny and debate” than those Risen wrote about in his book.)
Now let’s look at Risen’s case. First, it is relevant here that Risen is one of the country’s preeminent investigative reporters on national security abuses. That’s relevant, not because his stature confers immunity, but because it makes him a potential target of government harassment and retaliation.
Risen was on the New York Times team that first reported, in 2004, that the Bush Administration was using waterboarding as an interrogation tool. Then, in December 2005, he and Times reporter Eric Lichtblau wrote a series of “carefully sourced stories on secret domestic eavesdropping that stirred a national debate on the boundary line between fighting terrorism and protecting civil liberty,” as a Pulitzer Prize awards committee later put it. (It was Risen’s second Pulitzer.)
That surveillance series, which obviously foreshadowed the subsequent Snowden revelations, inspired outrage among certain Administration officials at the time, who were reported to be weighing a possible criminal inquiry of the reporters responsible. Right-wing protesters picketed Risen’s office.
A month after his surveillance series came out, Risen published his third book, entitled State of War: The Secret History of the C.I.A. and the Bush Administration. The book touched again upon domestic surveillance practices, the C.I.A.’s use of torture in secret prisons abroad, and its alleged suppression of evidence that Iraq did not have weapons of mass destruction. Reviewer Walter Isaacson hailed it, writing, “James Risen may have become the new Woodward and Bernstein.”
Risen's current legal problems stem from Chapter 9 of that book. It described Operation Merlin, an allegedly ham-fisted attempt by the C.I.A. to set back Iran’s efforts to develop a nuclear weapon by having a Russian scientist provide that country flawed nuclear blueprints. According to the chapter’s source, the flaws in the plans were preposterously obvious, but the C.I.A. pressed forward anyway.
Risen later explained in a court affidavit that he included chapter 9 in his book because it showed that the C.I.A.’s intelligence on Iran’s WMD was potentially just as flawed as its intelligence on Iraq’s WMD. Since the U.S. was then contemplating a military incursion into Iran to cripple its nuclear capability, he wrote, “this was a story that the public had to know about before yet another war was launched.” Since Operation Merlin was then more than six years old, he felt confident that publication of the account would not endanger national security or intelligence assets’ lives.
In January 2008, Risen received a subpoena to testify before a grand jury. The target of the inquiry was former C.I.A. agent Jeffrey Sterling, who was being investigated for unauthorized disclosure of national defense secrets—i.e., leaking the details of Operation Merlin to Risen. Though Risen was not the target of the probe, a subpoena is inherently intimidating. Failure to comply with it may result in life-altering fines and imprisonment. There is always a danger that the government, in issuing one to a journalist, is not merely gathering evidence against the target of a probe, but is also sending a tart message to the journalist himself: Back off.
Risen moved to quash the subpoena. U.S. District Judge Leonie Brinkema, of Alexandria, Virginia, took extensive evidence, much of it submitted under seal. She then performed a balancing test of the type Justice White’s opinion in Branzburg seemed to preclude, but Justice Powell’s said was essential in some undefined subset of cases. She then quashed the subpoena, finding that there was ample evidence that the government could use to indict Sterling without having to enlist Risen as a foot soldier. Risen’s testimony would merely be “the icing on the cake,” she wrote.
We know she was right, because three weeks later Sterling was indicted without Risen’s testimony.
But the government then served Risen with a new subpoena, ordering him to testify against Sterling at trial. In July 2011 Judge Brinkema quashed this subpoena too, for the same reasons. The government hadn’t even claimed that his testimony was necessary to prove Sterling’s guilt, she wrote, but only that it would “‘simplify the trial and clarify matters for the jury’ and ‘allow for an efficient presentation of the Government’s case.”
Last July, though, a split panel of the appeals court reversed, and ordered Risen to testify. As a consequence, tomorrow, if the Supreme Court doesn't take his case, Risen will have to choose between testifying and going to jail. The majority found that neither the First Amendment nor federal common law afforded any protection to a journalist called to testify before a grand jury. It cited, of course, Branzburg, the case that required a reporter to testify against two individuals that had let him watch them manufacture hashish.
The Branzburg case didn’t present issues remotely approaching the significance that Risen’s does. Risen’s encapsulates the most important, recurring freedom-of-press issue of our day.
The Supreme Court needs to hear it. Now.