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A Privileged Press?

Why James Risen may be headed for jail.

Sep 1, 2014, Vol. 19, No. 47 • By GABRIEL SCHOENFELD
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After nearly four years of procedural delay, the trial of former CIA officer Jeffrey Sterling is set to open shortly. Sterling was indicted at the end of 2010 for leaking information about a top-secret CIA operation to James Risen of the New York Times in violation of the espionage statutes. It is difficult to regard Sterling as in any sense a whistleblower, though, predictably, he calls himself such. He appears to have given Risen CIA secrets as a way to settle scores with the agency in a dispute over the presence of classified information in memoirs he sought to publish and also for being the victim of what, following a poor performance review, he claimed was racial bias.

James Risen

James Risen

AP / Alex Menendez

The trouble all began in August 2000, when Sterling, who is African-American, filed a racial-discrimination complaint against the CIA that the spy agency’s equal-employment office found had no foundation. A year later, Sterling filed a suit against the CIA based on the same complaint. In the weeks after 9/11, Sterling demanded a cash settlement, which the CIA declined to provide. Over the course of the next two years, Sterling put forward additional settlement demands, with the final one totaling $200,000 to be accompanied by a favorable employment recommendation. When that too was refused, Sterling filed a second lawsuit regarding CIA restrictions on his unpublished memoir. He also allegedly began funneling top-secret information to James Risen. Both of Sterling’s lawsuits were eventually dismissed by the courts.

The leaked information in question concerns Operation Merlin, a plan to pass along faulty blueprints of the trigger of a nuclear bomb to Iranian nuclear scientists. If Risen’s reporting is to be credited​—​and there is reason not to credit some of its most important details, as I noted in “Not Every Leak Is Fit to Print” (in the February 18, 2008, issue of this magazine)​—​subtle errors in the drawings were intended to derail the progress of Iran’s bomb-making effort. CIA director George Tenet and national security adviser Condoleezza Rice warned Times higher-ups that information in Risen’s proposed story would not only compromise the U.S. ability to collect intelligence about Iran, but might also lead to violent reprisal against and even the death of an individual that the CIA has identified only as “human asset No. 1.”

Editors at the Times listened to the CIA’s caution and weighed it against the news value of the story. This became one of the exceptional occasions in which the editors of the paper heeded the government’s warning. The Times spiked Risen’s story. But that was not the end of it. Risen turned around, did some additional reporting, and then published the secrets of Operation Merlin on his own as a chapter in his 2006 book, State of War: The Secret History of the CIA and the Bush Administration.

The prosecution in the Sterling trial intends to call Risen as a witness under subpoena and ask him to tell the jury about the source of the ultra-sensitive secret information that appears in his book. Risen, the only direct witness to Sterling’s alleged criminal acts, has vowed not to answer the question. To do so, he says, would break a promise he gave to his source. He therefore faces the possibility of being held in contempt and sent to prison, just like former New York Times reporter Judith Miller, who in 2005 spent 85 days in the Alexandria Detention Center in Virginia for refusing to testify in the Valerie Plame imbroglio.

For several years running, Risen and a gaggle of attorneys representing the Times and other media organizations have been contesting the subpoena, insisting that as a reporter Risen enjoys a testimonial privilege akin to the priest-penitent, attorney-client, and husband-wife privileges recognized in law. The courts have not agreed. In June, without comment, the Supreme Court turned away Risen’s last possible appeal. The justices evidently do not care to depart from their landmark 1972 ruling in Branzburg v. Hayes that the First Amendment confers no testimonial privilege upon journalists.

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