The Magazine

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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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.