Forty-eight states and Washington, DC, recognize the kind of privilege at issue in this case: whether during criminal trials a journalist has to divulge information on his confidential sources.
But, in recent years, "federal and state subpoenas seeking confidential information from reporters have recently become more widespread. In 2006 alone, newsrooms received 67 federal subpoenas for confidential information, 41 of which sought the identity of confidential sources," according to the Senate Judiciary Committee.
Risen has tried to argue, in the aftermath of news reports on the Justice Department's seizure of the Associated Press' phone records for a leak case, new Department guidelines strengthened protections for journalists which are being negated entirely by pursuing this case.
The problem Risen faces the guidelines do not actually change the equation in the case, since the Department argues they are only compelling information "as a last resort" and the Fourth Circuit Court of Appeals has agreed.
This is a significant issue, which Risen describes in the submission to the Supreme Court. If his evidence is "essential" because it is the "only direct evidence of the alleged crime," that suggests journalists may never win protection from courts in leak cases.
"[I]f, as the court of appeals suggests, no circumstantial evidence can ever be as probative as a reporter's direct testimony about the identity of a leaker, then in leak cases, there will be no balancing at all; the reporter's testimony will always be "essential" and there will be no need to exhaust all reasonable alternatives because there will be none. Such a balancing test would provide no protection to reporters in leak cases, regardless of the importance of the information reported"
If this is the balancing test, then there is virtually no way a national security journalist like Risen could reassure his sources that he can protect them. He would know the government could compel him to testify against his source and he would be unable to defend against it unless he was willing to go to imprison and risk disrupting his livelihood and career.
But that is exactly the state of play here. The Obama administration has mounted unprecedented leak investigations that cast a wide chilling effect on the news gathering process. It has abused secrecy powers to keep information from reporters and the public. It has embraced dragnet surveillance to an extent that leaves reporters fearful their communications are being compromised by government agents. It has been hostile to the press on a level comparable to President Richard Nixon's administration.
Understanding all this, Risen has boldly stated he is willing to go to jail and will not give up this fight. He has the full support of media organizations (even though US media are not adequately calling attention to this story when developments like this occur).
A New York Times reporter is headed to the Supreme Court because the government has relentlessly pursued him since he refuses to testify against his source (which, if done, might compromise his ability to effectively practice national security journalism ever again).
Your move, President Obama.
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
3
2
1
