The United States has a right to protect secrets. Though President Obama often speaks as if the West is not still locked in a life-and-death struggle with Islamist terrorists, the security needs of this nation are still considerable and require discretion on the part of those entrusted with them. But even those who honor the notion that the public does not need to know every bit of classified information in the possession of the government should be alarmed at the willingness of the administration to act as if leaking is the primary threat to the rule of law. The alarming nature of the Department of Justice’s jihad against the press was made all too clear early this year when news of the government’s spying on Associated Press reporters and Fox News correspondent James Rosen was revealed. But if a federal appellate court ruling issued last week stands, the problem may be far worse than we thought.
On Friday, the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia decided that New York Times reporter James Risen must testify in the trial of a former CIA official accused of leaking information that was allegedly used to help write a 2006 book. Doing so would not just violate Risen’s pledge not to reveal his sources but would constitute a major infringement of press freedom that could have serious consequences for the future of American democracy. While the right to shield sources is not absolute, by ruling in this manner, the Fourth Circuit could be establishing a precedent that will make it impossible not just to pursue investigative journalism, which relies on confidential sources, but for news gathering organizations to conduct any sort of scrutiny of the intelligence and defense establishment. Though this ruling has not gotten a fraction of the coverage accorded to the AP and Rosen scandals, it is potentially more far-reaching in its scope. For once, I agree with the Times editorial column which rightly says today that this ruling should be overturned by the U.S. Supreme Court.
Compelling Risen to testify in what is, after all, a criminal trial, may not seem unreasonable to those who are justifiably angry about the way classified information seems to be flowing from the government via WikiLeaks, Edward Snowden, and countless other examples of leaking, especially those with a political axe to grind. But while prosecuting leakers is justifiable, the government’s effort to criminalize journalism is not.
Attorney General Eric Holder was widely and rightly criticized for the Department of Justice’s outrageous description of Rosen as a “co-conspirator” along with a government employee in the crime of disclosing classified information. Journalists are not above the law, but in order to do their jobs they must have the right to speak to government officials and not be treated as felons for normal interactions with sources. Since the furor over DOJ’s wrongful conduct in the Rosen case, Holder has issued guidelines for dealing with the press to prosecutors that will supposedly ensure that this sort of unjustified snooping won’t be repeated. But the Fourth Circuit has seemingly given a seal of approval to prosecutorial abuses that are just as bad as the conduct Holder sought to abolish.
A government that makes it next to impossible for investigative journalism to thrive is not one that has a thriving free press. If Holder and his boss President Obama are truly serious about press freedom and putting this scandal to rest, they will save the high court the trouble of overruling the Fourth Circuit, and quash Risen’s subpoena immediately. Government secrets are important, but not more important than preserving the First Amendment.