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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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Risen​—​it is not a closely held secret​—​is a partisan in our country’s partisan wars. That is all fine and good; he is free to express his opinions and the country thrives on uninhibited, robust, and wide-open debate. The New York Times, by the same token, is free to allow its reporter to violate its own guidelines without consequence. Our newspaper of record’s pretense of “impartiality and neutrality” has long since gone from being the “heart of its mission” to being the stuff of farce. With all the self-praise that the unnamed authors of the Ethical Journalism handbook piously heap upon the Times for irreproachable integrity and scrupulous observance of the “highest possible standards,” the document resembles nothing so much as the old Soviet constitution, full of wonderfully humane provisions, all for show.

The handbook contains a section instructing journalists that they “must obey the law in the pursuit of news.” It enumerates a number of specific crimes from which they are especially enjoined, like tapping telephones or stealing data, and it concludes with the categorical command that “they may not commit illegal acts of any sort.” Of course, it was perfectly legal for Risen to publish information in his book that endangered the life of the CIA’s “human asset No. 1” while also compromising intelligence sources and methods. But it is striking that at no juncture did the editors of the New York Times exhibit any evidence that they were perturbed by the fact that their employee acted in a fashion that they themselves, as a responsible news organization, deemed injurious to their country.

If all that was perfectly legal, it is perfectly illegal to refuse to testify in response to a valid subpoena. Risen and his colleagues may disagree with the law that commands such testimony, and they were fully within their rights to challenge it in the courts on First Amendment and other grounds, as they have done. But those challenges failed. The law is clear and it remains in force. It is thus one thing for Risen to fail to comply with his employer’s meaningless ethics handbook. It is another for him to pick and choose which laws of our country he will deign to observe and which illegal acts he will feel free to commit.

In successive sessions, Congress has considered establishing a reporter’s privilege only to reject such “shield-law” legislation. The American people have not exactly been clamoring to give a federal get-out-of-jail card to practitioners of an institution they do not hold in particular esteem. They prefer instead, it appears, to preserve a bedrock principle of Anglo-American jurisprudence, put forward in the 18th century in the classic phrase of Lord Chancellor Hardwicke (Philip Yorke), that “the public has a right to every man’s evidence.” By insisting upon a right not to testify in the Sterling case even after our nation’s highest court has turned away his appeal, Risen​—​pursuing his own highly partisan agenda while simultaneously endangering public safety​—​is placing himself above the law, a law that he and his supporters believe need only be observed by the little people.

In the Sterling case, the Obama Justice Department led by Attorney General Eric Holder​—​not the most hardline conservative the country has ever had serving as attorney general​—​is prosecuting a crime that imperiled the life of someone working undercover for our country to stop Iran from developing nuclear weapons. No one is under any obligation to make promises of eternal silence to traitors seeking to derail American intelligence as it works to avert a great danger to world peace. Nor can anyone stop a political-activist/reporter from choosing to face punishment for refusing to fulfill his obligation as a citizen to testify. In this case, he is the only individual with direct first-hand evidence of Sterling’s guilt or innocence for a serious crime. A jury charged with seeking the truth needs to hear what he has to say. Declining to testify is contempt, which is exactly the right word, for Risen is being contemptuous of both our democracy’s fundamental need for security and its duly enacted laws.

Gabriel Schoenfeld, a senior fellow at the Hudson Institute, is the author of Necessary Secrets: National Security, the Media, and the Rule of Law.

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