Under strict federal guidelines, prosecutors are supposed to subpoena a journalist for the name of a source only when the government needs the information to establish a suspect’s guilt or innocence. But Risen, a Pulitzer Prize-winning reporter for the New York Times, has been subpoenaed twice to identify his sources for a book he published in 2006, even though prosecutors believe they already know the leaker’s identity. In other words, prosecutors are expanding their reading of the circumstances under which they can go after journalists for information.
[Read Shane Harris on the Obama administration’s war on leaks in the August issue of The Washingtonian.]
I spent a lot of time researching the history of media subpoenas, and I couldn’t find a case when prosecutors pushed the envelope like they are with Risen. This should trouble every journalist who writes about classified matters, including those who were given early access to a trove of 92,000 intelligence reports by the Web site WikiLeaks, which obtained the documents some time ago from an unidentified source.
On Sunday evening, three publications—the New York Times, the Guardian, and Der Spiegel—ran stories about the so-called war logs, which chronicle military operations in Afghanistan and Pakistan over the years. The publications agreed not to disclose details that would be useful to an enemy, such as the names of operatives in the field, and they appear to have gone to considerable lengths to redact sources and methods of intelligence gathering in any material that’s published, either in print or online. But right now, whether they know it or not, the Times and the other news outlets are standing in the middle of a desperate fight between the Obama administration and WikiLeaks.
At stake is nothing less than the government’s ability to control its information. WikiLeaks is a game-changing force. The Web site has indiscriminately published an array of classified, sensitive, and embarrassing information. It allows leakers to submit information through a secure system of computer servers. WikiLeaks can publish the information in its entirety, without weeks of reporting and fact-checking or conferences with government officials. The administration can’t easily shut WikiLeaks down because its servers are situated all over the world, and because WikiLeaks founder, Julian Assange, has of late avoided stepping foot on U.S. soil.
The production of the war logs, however careful and considered, isn’t going to deter Obama’s prosecutors from trying to find out who gave these documents to WikiLeaks in the first place. And if they believe that the news organizations have information that could help solve that puzzle, they’ll subpoena them for it.
There are some clear signs that the papers realize the legal environment they’re operating in.
“Deciding whether to publish secret information is always difficult, and after weighing the risks and public interest, we sometimes chose not to publish,” the Times wrote in an editors’ note that accompanied the piece. “We have avoided anything that might compromise American or allied intelligence-gathering methods such as communications intercepts.”
Sounds mighty . . . chilly. This was almost surely written by a lawyer—or at one’s strong urging. First, the editors acknowledge that they deliberated over publishing the material. Then they say that most of this stuff isn’t really that “secret.” That’s an argument that leakers have used in their own criminal defenses.
And then the editors point out that they haven’t published “communications intercepts.” The Times knows very well that the government has considered prosecuting a news organization for publishing such intercepts because Attorney General Alberto Gonzales suggested in 2006 that he might go after Risen and a colleague for exposing the agency chiefly responsible for “communications intercepts.”
The Times isn’t speaking to its public critics, who’ll blast the editors for whatever they do or don’t publish. This message is meant for a different audience. The Times editors know that the public’s arguable right to know the information in the war logs won’t keep the administration at bay. If they had any illusions on that score, they need only talk to their colleague, Jim Risen.
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