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James Risen in Chains

Is the Justice Department subpoena to James Risen of the New York Times a threat to the rule of law? Or, as I argue in the latest Weekly Standard, is the subpoena amply justified?

Liberals and the Left have been surprisingly mute about the issue of leaks of classified information and the Justice Department’s response. A recent exception comes from Glenn Greenwald of Salon, who is highly alarmed by the DOJ’s action:

Grand Jury Subpoenas such as the one issued to Risen have as their principal purpose shutting off that avenue of learning about government wrongdoing — the sole remaining avenue for a country plagued by a supine, slothful, vapid press and an indescribably submissive Congress.

Greenwald’s analysis is worth reading in full. He offers some interesting speculation about why this issue is coming to the fore now, most of it centering on the appointment of Michael Mukasey as Attorney General. But I found the most fascinating portion of his column to be the blank spot in its very center.

Greenwald is a constitutional lawyer, but he offers not a word of discussion about the legal and constitutional issues involved in the publication of classified information by journalists. This left me curious to know several things:

1.  Could it ever be a crime, in his view, for a “whistleblower” to disclose classified information?

2.  Could there ever be a legitimate reason for the Justice Department to issue a subpoena to a journalist (even the shield law making its way through Congress has a national-security exception, too narrowly drawn in my view, but an exception all the same)?

3.  Could there ever be a legitimate reason, in his view, for the Justice Department to prosecute a journalist who publishes classified information?

Perhaps Greenwald will come up with some answers at Salon and we will see the beginnings of a proper debate.



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