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Not Every Leak Is Fit to Print

Why have federal prosecutors subpoenaed a New York Times reporter?

Feb 18, 2008, Vol. 13, No. 22 • By GABRIEL SCHOENFELD
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Investigations of national-security leaks in Washington are not all that rare. But until Judith Miller of the New York Times was sent to jail for 85 days by a special prosecutor digging into the Valerie Plame imbroglio, investigations of such leaks in which journalists are subpoenaed were about as common as unicorns wandering the National Mall.

We now have another such unicorn. On January 24, a federal grand jury in Alexandria issued a subpoena to James Risen of the New York Times, seeking information about who in the U.S. government provided him with classified information that he published in his book, State of War. That book appeared in January 2006, more than two years ago. The CIA may have a hard time keeping secrets, but the Justice Department, we are learning now that this long-running leak inquest has come to light, seems to be very good at it.

There are at least two possibilities why Risen was issued a subpoena. One is that his book badly embarrassed the CIA by exposing incompetence well beyond its familiar inability to keep secrets. In referring the breach to the Justice Department for investigation, the CIA is paying him back. The subpoena, in other words, is part and parcel of a cover-up of agency bungling.

Another explanation is that, thanks to Risen's book, valuable intelligence sources and methods were compromised, damage was done to national security, and the Justice Department has been tasked with tracking down the malefactors in the intelligence community who broke their oaths of secrecy, violated the law, and dropped classified information of value to American adversaries into the public domain. Because Risen is the only one who knows their identity, he is being hauled before a grand jury.

Daniel Schorr of NPR is a proponent of the first theory. He sees a CIA "enraged" by the leak of its "colossal failure" and striking back. I would bet the agency's Farm that he is wrong. And that the second theory is closer to the mark.

According to Risen's lawyer, David N. Kelley--a former federal prosecutor now of Cahill Gordon & Reindel-- the subpoena is focused on a chapter in Risen's book dealing with Iran. Part of it recounts an agency foul-up in 2004 with a system that made it possible "to send high-speed, encrypted messages directly and instantaneously from CIA headquarters to agents in the field who were equipped with small, covert personal communications devices." In short order, thanks to a botched transmission, the entire roster of American spies in Iran was rolled up. The CIA, according to Risen, was left "virtually blind in Iran, unable to provide any significant intelligence on one of the most critical issues facing the United States--whether Tehran was about to go nuclear."

The same chapter in State of War also extensively examines Operation Merlin, the codename for a CIA plan to funnel subtly flawed plans for the trigger of a nuclear device to Iran. The idea behind the scheme, according to Risen, was to induce the Iranians to rely on bad blueprints in building their bomb so that "instead of a mushroom cloud, the Iranian scientists would witness a disappointing fizzle." Along with the setback to their nuclear program, the Iranians would suffer humiliation before the world.

In State of War, Risen makes the Merlin plan seem harebrained. He notes, for one thing, that the émigré Russian scientist who was to deliver the Trojan Horse documents to the Iranians was able to spot the planted error at a glance. Risen points out that Iran possesses "a strong base of sophisticated scientists" who also would be "knowledgeable enough to spot flaws in nuclear blueprints," and that "[e]ven if the Iranians were interested in using the blueprints provided by the mysterious Russian, they would certainly examine and test the data in the documents before ever actually trying to build a bomb."

Risen also points to the dangers inherent in any intelligence program that passes nuclear information to an adversary, even if some of the information is designed to mislead. "If mishandled," he writes, such an initiative "could easily help an enemy accelerate its weapons development." In this instance, a CIA case officer, he reports, was convinced that exactly that might occur. The officer grew so concerned "that he went to the Senate Select Committee on Intelligence to tell congressional investigators about the problems." But no action was taken.

In State of War, Risen provides an impressive array of details about Operation Merlin. But how do we know he has a full or accurate story? When writing about classified programs, investigative journalists attempt to assemble a picture from bits and pieces of information that are provided to them by confidential informants. Because intelligence information is tightly compartmentalized, these inside sources, unless they are at the top echelon, have only a partial grasp themselves of what the CIA is doing. They also always have an agenda of their own--to torpedo certain policies and/or advance their own careers. Journalists relying on such sources inevitably draw a picture that is skewed and incomplete. They not only lack all the pieces, they do not know what is true and what is false. Most important, they do not know what they do not know, including what kind of harm their reporting might inflict on the United States. In other words, they are groping in a dark room with a dagger in their hands.

Risen is expert at gaining the confidence of sources in the intelligence world and inducing them to tell him what they know. He is strikingly less adroit at making sense of what his sources tell him. At one juncture, Risen is at great pains to demonstrate that the Russian scientist used by the CIA as an intermediary wrote an unauthorized letter to the Iranians alerting them to the fact that the blueprints were deliberately flawed. After repeatedly hammering on this point, he reprints the text of the letter. It is in slightly broken English, but it says nothing of the sort.

At another juncture, Risen calls Merlin "one of the most reckless operations in the modern history of the CIA." Indeed, the chapter about Merlin is called "A Rogue Operation." But in what sense does Merlin qualify for an appellation that conjures up images of an unaccountable CIA launching missions on its own? The answer, supplied by Risen himself, is in no sense. After a long disquisition about how the CIA was "flying blind--dangerously so," he pirouettes to inform us that Operation Merlin was "first approved by President Bill Clinton" and subsequently "endorsed" by the Bush administration. In other words, far from carrying out a rogue operation, the CIA was proceeding under appropriate control.

Throughout the chapter, and indeed throughout the book, Risen reveals a trait that raises questions of another sort about State of War. The Merlin operation, he writes, had been conceived "in the darkest corner" of the American national-security establishment. The Russian émigré scientist in the employ of the CIA "stood out like a poor eastern cousin on Vienna's jeweled cityscape." As he approached his dropoff point, he experienced a "fevered rush of adrenaline." The fever "suddenly cooled when he realized the Iranian office was closed for the day." A depiction of the NSA as an "evil, rogue organization that used its cutting-edge technology to spy on and persecute unwitting Americans" had the effect of sending "shivers through [Michael] Hayden," who was running the agency at the time.

State of War is constructed almost entirely of breathless prose like this. In other words, in discussing the delicate game of intelligence, Risen writes on the level of the fictive Franklin W. Dixon, "author" of the Hardy Boys. His political analysis, in which "neoconservatives" in the Pentagon and White House are perpetually doing battle with State Department officials who are repeatedly "stunned" by the audacity of the "hardliners," is a perfect match to his tot-lot style.

The New York Times, which published some of the revelations in Risen's book--most notably his reporting about the NSA's Terrorist Surveillance Program--printed not a word about Operation Merlin. Why were they willing to allow their own reporter to scoop them on an important story? Were the editors of the Times worried about Risen's sourcing? Or were they troubled by something else? (The Times, always pressing relentlessly for openness in government, refuses to comment on its own internal deliberations.)

If that is suggestive, several other things also stand out in Risen's account of Operation Merlin that make the issuance of the federal subpoena more comprehensible. One of them is Merlin's highly sensitive nature. Risen himself notes that it was classified as SAP, a "special-access program," beyond top-secret. Knowledge of it was confined to "only a handful of CIA officers." Even the CIA station in Vienna, where the document transfer was to take place, was kept in the dark. Second, Risen states baldly that the National Security Agency was "eavesdropping on the telephone lines of the Iranian mission in Vienna," that it also "had broken the codes" of Iran's intelligence ministry, and that it was able to ascertain when the nuclear blueprints were picked up.

The significance of all this is hard to miss. Codebreaking and the interception of electronic transmissions are the crown jewels of American intelligence and guarded as such. Communications intelligence is one of three narrow categories of secrets--along with the identities of intelligence agents and the design of nuclear weapons--protected by a special statute all its own. State of War punctured this blanket of secrecy. And it did so in a way that undoubtedly caused the Iranians, along with other American adversaries, to improve their codes and protect their communications far more carefully. Thus, at a moment when U.S. intelligence was tasked with gaining information about Iranian nuclear weapons--one of our highest national priorities--out came revelations that closed a key American window into the workings of the Iranian government.

Astonishingly, but not surprisingly, lobbyists for the media and advocates of "open government" are citing the subpoena handed to Risen as a reason for the Senate to pass a shield law exempting journalists from having to give evidence to grand juries and in courts. (The House passed such a bill last year.) "It absolutely shows the need for this legislation," says Lucy A. Dalglish, the executive director of the Reporters Committee for Freedom of the Press.

But if anything, this case absolutely shows the perils of such legislation. Even without a shield law, reporters like James Risen are encouraging employees of the American people to renege on their oaths of secrecy, break the law, disclose information that severely undermines national security, and put all of us at risk. A shield law would be a license to do much more of the same.

James Risen is perfectly free to pursue a prize-winning journalistic career built upon promising confidentiality to sources within government. But there is an ancient and essential principle embodied in our democratically enacted laws: the public "has a right to every man's evidence" when our statutes are trampled upon. The rest of us are thus perfectly free to applaud that Risen is being compelled to testify about a crime that has been committed, a crime in this instance in which he is fully complicit.

Gabriel Schoenfeld, senior editor of Commentary, writes daily at connectingthedots.us.com.