“As long as I’m attorney general, no reporter who is doing his job is going to go to jail.” Of course, that all depends on what exactly Attorney General Eric Holder means by “doing his job.” Though Eric Holder and the Obama administration have expressed strong support for press freedom, the practices of the current administration have conveyed a different message. Consider the developing case of New York Times reporter James Risen. Years after publishing a Pulitzer Prize winning investigative piece on a domestic wiretap program administered secretly under the Bush administration, Risen received a subpoena from the Justice Department for a chapter in his book, “State of War,” that detailed a mismanaged covert CIA operation in Iran. Despite a change in administration — to one that has promised increased government transparency no less — Risen’s legal woes actually intensified. Beyond indicting the CIA official alleged to be responsible for the leak, the federal government has continued to pursue Risen aggressively. The legal battle has rightly raised serious concerns for the future of press independence and investigative journalism. This past week, the Justice Department suggested that it intends to subpoena Risen yet again; if Risen refuses to testify and thereby maintain the confidentiality of his sources, he risks incarceration.
On its face, this situation is inimical to democratic ideals of a free press. The fact that the government is still actively pursuing a reporter and pressuring him to reveal confidential sources nearly a decade after the release of the confidential information that was supposedly damaging to national security should provoke suspicion. The apparent crusade against Risen seems to be indicative of a broader attempt to intimidate reporters and limit press freedom. A prominent case such as Risen’s cannot be understood as one that pursues any meaningful security objective; it is simply one of retaliation.
There is certainly no doubt that some matters must be kept secret, especially where national security is concerned, yet often the only channel through which important information reaches the public is the media’s coverage of leaks. The administration does not seem to realize what is at stake here. The administration’s goal of defending national security through increased secrecy measures has crippled press freedom and reporters’ incentives to investigate disconcerting or failing features of U.S. defense policy. In pursuing a case apparently aimed at limiting potential government embarrassment, the administration risks setting a dangerous precedent for press independence. This legal action suggests a broader approach to leaks, one that conceives of investigative journalism as a danger and not as an important function of an active, concerned press that seeks to inform the public.
Part of the problem is the deteriorating quality of the press itself. For the most part, the broadcast news media focuses on conveying the views of political actors so much that the public is increasingly incapable of identifying what investigative journalism truly is. The news media often serves as a crucial conduit through which government actors can deliberately leak classified information in order to serve their own ends (though finding specifics on this subject is difficult, given that the list of deliberate leaks is itself classified). Leaking of classified information is nothing new; the issue is the content’s depiction of the administration. It is hardly surprising that instances of hard-hitting, politically damaging reporting of the Risen sort have become the exception and not the norm. In an environment that stifles dissent by couching the “necessity” of keeping anti-terrorist operations completely secret, it is becoming exceedingly difficult to report on the efficacy of such operations.
The administration’s approach toward such investigative news reports seems to suggest that reporting conducted with the intent to inform the public has the potential to be more dangerous than an act of providing direct aid to a foreign enemy. Six government employees and two contractors have been subject to prosecution under the 1917 Espionage Act for allegedly leaking classified information to the press; in all previous U.S. administrations, there have only been three of these prosecutions. Such an approach marks American citizens as enemies and conflates muckraking with subverting authority. The Justice Department presumes citizens who report on classified government operations have malicious intentions, when the motives of such individuals actually often stem from perfectly legitimate concerns over such operations’ legality and judiciousness. Journalists bear a unique responsibility in this regard, yet the law affords them few protections. Ideally, federal law should provide reporters with special privilege to maintain source confidentiality, yet given the current administration’s practices such a development is unlikely.
At a time when government programs aimed at information control and furtive data collection have expanded, challenging central notions of privacy and security, media scrutiny has been critically lacking. To a degree, this is due to what seems to be an organized campaign to intimidate reporters and potential sources of information. For a reporter such as James Risen who simply wishes to do his job, he must be allowed to protect confidential sources; the image of a reporter going to jail for covering a story on national security is a chilling one to contemplate.
Conor Kelly is an Opinion Columnist for The Cavalier Daily. He can be reached at c.kelly@cavalierdaily.com.
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