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Plugging the Leaks
Comments () | Published July 21, 2010
This wasn’t the first time Risen had tangled with secretive government officials. Less than a month before the publication of State of War, President Bush had called the top editors of the New York Times to the Oval Office to dissuade them from publishing another blockbuster, this one an exclusive that Risen had written with fellow reporter Eric Lichtblau about potentially illegal surveillance of Americans’ phone calls and e-mails.

President Bush had authorized the secret surveillance program shortly after the 9/11 attacks, and he believed it was one of the most fruitful sources of intelligence about terrorists’ plans and the inner workings of their organizations. Bush warned the Times staff that it would be held responsible if the story helped al-Qaeda and other terrorists figure out how America was spying on them.

The editors weren’t persuaded that the intelligence value of the program outweighed the public’s right to know about it, particularly because the reporters had learned of a pitched battle within the senior ranks of the administration over whether the program had broken a law on monitoring American citizens. The newspaper published the story on December 16, 2005, and the next day Bush fumed in his weekly radio address that the leak “puts our citizens at risk . . . alerts our enemies, and endangers our country.” Now the administration was up against the same tenacious reporter.

This also wasn’t the first time the White House had tried to flag Risen off the Iran story. In early 2003, Risen had intended to write about Merlin in the Times. CIA director George Tenet asked Risen and his editors to meet him and national-security adviser Condoleezza Rice at the White House. According to a former intelligence official and another source familiar with the events, they argued that exposing the operation would damage US national security and hamper the CIA’s efforts. Tenet and Rice made a persuasive pair—the Times editors spiked Risen’s story.

At the end of January 2008, two years after the leak investigation began, the Justice Department delivered a subpoena to the New York law firm Cahill Gordon & Reindel, which was representing Risen. It ordered the reporter to appear before a grand jury in Alexandria, where prosecutors would presumably try to force him to identify his Merlin sources.

If he refused to testify, the judge could find him in contempt and confine him to jail until he changed his mind. He could also face financial penalties. Less than month after Risen got his subpoena, a judge ordered former USA Today reporter Toni Locy to pay fines totaling up to $5,000 a day for refusing to comply with a demand to know her sources. The judge said Locy would have to pay the fine out of her own pocket.

“We intend to fight this subpoena,” Risen’s lawyer, David N. Kelley, told the Times. Kelley had been a federal prosecutor earlier in the Bush administration. “[Risen] will keep his commitment to the confidentiality of his sources.”

Leak investigations are usually unproductive. Defying the perception of secrecy in the world of spycraft, the number of people who know about even the most highly classified program can be in the hundreds. It’s rare that investigators identify a suspect, and rarer still that they bring an indictment and go to trial, because the accused could end up revealing more classified information in his defense—a kind of “graymail” that ensures that most leakers will never spend time in prison. From 2005 to 2009, federal agencies referred nearly 200 leaks to the FBI. Investigators opened 26 cases, identified 14 suspects, and prosecuted none of them.

Reporters make attractive targets for investigators who need confirmation of a leaker’s identity. But historically, the Justice Department has set a high bar for questioning journalists. Recognizing that the freedom of the press is only as broad as the freedom of individual reporters to investigate and publish the news, federal prosecutors are restricted from compelling media testimony except under specific circumstances.

According to Justice Department regulations first issued in 1970, the prosecutors must exhaust all available means of figuring out who the leaker is; that includes taking testimony from government officials and possibly conducting hundreds of interviews. The prosecutors also have to make their subpoena case to the attorney general, who must personally approve it. The information the government seeks must bear directly on the case at hand, and in criminal cases—which the Merlin leak was, because the operation was classified—it must be “essential to a successful investigation—particularly with reference to directly establishing guilt or innocence,” the guidelines say.

It’s impossible to know how many times federal and state governments have issued media subpoenas. The documents aren’t publicly disclosed. There also is no official tally of subpoenas issued in civil cases, which are often brought in libel and privacy suits by plaintiffs who think a journalist can identify their detractors.

Risen’s 2008 subpoena expired with the term of the grand jury. Media watchers and intelligence officials presumed that the Merlin investigation would go the way of most fruitless searches. But after reviewing leftover leak cases from the Bush administration, the Obama Justice Department decided to revive this one. In April of this year, Risen received another subpoena to appear before the grand jury in Alexandria.

Why the government chose to pursue the case again remains unclear. Nor is it publicly known whether the prosecutor has expanded the scope of the subpoena and is seeking more information than just who leaked about Merlin. State of War also contains allegations of CIA ineptitude from the mid-1990s, years before the Iran operation began.

But what is known is that the Merlin leak presents some unusual circumstances. According to former intelligence officials with direct knowledge of the program, it was closely held within the CIA. Not many officials knew of its inner workings, so the list of potential leakers was short. That makes the government’s pursuit of Risen puzzling.

According to one former official, the government believes it has already identified a suspect, which could make Risen’s testimony not only unnecessary but also a violation of the department’s own guidelines on media subpoenas.

“They already know who it is,” says the former official, who describes the suspected leaker as someone who is no longer employed by the CIA and who officials are confident was a source for Risen’s chapter.

There are also indications that the judge presiding over the grand jury doubts the need for Risen to identify his source. Another former official says that on this second go-around, the judge wasn’t prepared to enforce a subpoena unless the Justice Department ran it through its internal approval process again. That meant reviewing the need for the subpoena and taking it to attorney general Eric Holder, who ultimately signed off.

According to media lawyers, making prosecutors repeat the process is a sign that the judge thinks they should move ahead with their case—without Risen’s testimony.

“It’s somewhat comforting to know the judge put them through the paces,” says Chuck Tobin, a former journalist and a partner at Holland & Knight. “But it’s still disturbing. If they know who the leaker is, why do they need Risen to point fingers? Reporters are supposed to be the witnesses of last resort.”

Risen’s current attorney has said he’ll fight this subpoena, too. The Justice Department won’t comment on whether prosecutors have identified a suspect or on any other aspects of the case, which is under seal. But spokesman Matt Miller pushes back on the notion that prosecutors can subpoena a journalist only when they truly don’t know who his or her source is: “The rules are that the department has to make every reasonable attempt to get the information from other sources before even considering a press subpoena.” They can only use a subpoena “to obtain essential information that can directly establish guilt or innocence.”

But if the Justice Department now believes that it can force journalists to testify even if investigators believe they know who the leaker is, it would mark a shift in the balance of power between the government and the press.

As consequential as this shift would be, it’s in keeping with the Obama administration’s embrace of secrecy. Officials have been so aggressive in pursuing leaks that the President appears less tolerant of unauthorized disclosures than George W. Bush, who accused journalists of aiding and abetting America’s enemies.

Newsweek reporter Jonathan Alter’s book The Promise: President Obama, Year One describes the particular—and according to some White House staff, pointless—obsession that the President has with those who speak out of turn.

Alter writes that “no one on his staff was brave enough to tell [Obama] that obsessing over leaks was a colossal waste of time. But it wouldn’t have mattered: leaks offended Obama’s sense of discipline and reminded him of everything he disliked about the capital. He was fearsome on the subject, which seemed to bring out his controlling nature to an even greater degree than usual.”

Off-the-record gossip, reported innuendo, and even damaging leaks are staple transactions in Washington. They are the lubricant in a symbiotic spin machine that, in the long run, serves the interest of the presidency and the press. Trying to stop leaks is a Sisyphean task, but that hasn’t stopped Obama from trying.

The administration is on the verge of being the first in US history to see two people sentenced for disclosing classified information in a single presidential term. In May, Shamai Leibowitz, a Silver Spring linguist who had worked for the FBI on contract, was sentenced to 20 months in prison for giving classified information to the host of a blog. And in April, the Justice Department indicted a former National Security Agency official, Thomas Drake, for allegedly leaking classified information to a reporter at the Baltimore Sun. If convicted, Drake could spend decades in prison.

The military also filed criminal charges in July against Bradley Manning, a 22-year-old Army specialist from Potomac who allegedly leaked government secrets to the Web site WikiLeaks. Manning is believed to have given the site footage of an Apache-helicopter strike in Iraq from 2007 that killed civilians and two news reporters. The footage caused a sensation when WikiLeaks posted it in April with the title collateral murder. Manning is also suspected of having given the site more than 250,000 secret diplomatic cables, which he may have copied off a government computer system in Iraq.

The math is telling: Taken together, the Manning investigation, the Leibowitz and Drake cases, and the Risen subpoena suggest that the Obama administration may go down in history as the most anti-leak of all.

Risen would make a tantalizing target for any administration. He has built his reputation by exposing questionable and potentially illegal activities in some of the most opaque corners of the government. He is an extraordinary reporter, and he inspires extraordinary animus among his targets.

“He’s a pain in the ass,” one former intelligence official observes. Says another: “I’d like to run him over with my car.”

Risen regards powerful establishments with skepticism, a view that has fueled his reporting. He joined the Washington bureau of the Los Angeles Times in 1990 as an economics correspondent. But he switched to the CIA beat five years later, not long after CIA officer Aldrich Ames was convicted of spying for the Soviet Union and, later, the Russian government. Risen joined the New York Times in 1998. His work has focused less on the political rulers that come and go than on the bureaucratic class, the career officials who remain in power for decades and run the government. They are often the targets of his reporting and often the ones who hold him in the highest contempt.

“The career folks at the Justice Department have been monumentally ticked off at Jim Risen for a long time,” says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “Jim is a serious reporter. He believes that if we don’t aggressively cover national security, people will run amok.” Risen himself has said the best reporter is a “curmudgeon” who asks the questions no one else will.

It’s tempting to view Risen’s subpoena as a form of institutional payback. One theory among reporters is that by prosecuting him for information in his book, as opposed to his New York Times articles, the administration avoids picking a fight with the most revered journalistic institution among the left.

But if the Obama administration is trying to send a message with this subpoena, it’s not meant for Risen alone. The implied threat is broader, and it’s clear to every reporter in town: If we can go after Jim Risen, we can go after anyone.

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Posted at 12:00 AM/ET, 07/21/2010 RSS | Print | Permalink | Comments () | Washingtonian.com Articles