The U.S. Supreme Court last week turned down the appeal of James Risen, a New York Times reporter who could go to jail for refusing to divulge a confidential source.
By declining to hear the case, the high court tacitly affirmed the chilling opinion of the appellate court that "there is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify" against confidential sources. It’s the latest in the barrage of attacks by the Obama administration on press freedom and an unconscionable blow to the national security reporting so vital for governmental accountability.
Ever since the 2006 publication of his book detailing a CIA operation to provide flawed nuclear blueprints to Iran, Mr. Risen has been hounded by federal subpoenas seeking his testimony against the alleged informant, Jeffrey A. Sterling. The most recent subpoena, personally approved by Attorney General Eric H. Holder, was quashed in District Court, with the presiding judge rightly noting, "A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook."
The Supreme Court’s controlling opinion on a qualified reporter privilege is cryptic, but appeals courts have historically hewed to a broad interpretation of the opinion that is protective of reporters. Now that the appeals courts are in conflict, the Supreme Court ought not to have shied away from its duty and should have stepped in to create a clear precedent.
But the court will be the court. At more fault is President Barack Obama, who campaigned on creating "an unprecedented level of openness in the government," but whose administration has instead created an unprecedented level of obliqueness and hostility toward the press.
Rather than adhere to his campaign pledge to strengthen federal whistleblower laws, Obama has aggressively pursued leak investigations and his administration has charged more people under the Espionage Act than all other administrations combined.
All this compromises the effectiveness of national security reporting, which relies principally on confidential sources in order to ferret out mistakes and deceit that would otherwise go unnoticed.
Holder has hinted that the U.S. Department of Justice might not seek to jail Risen for contempt if he refuses to testify — and it shouldn’t. Rather than attacking journalists for doing their jobs, Obama should make an effort to restore some accountability and transparency to his administration.