Charlie Savage at NYT:
The Obama administration is seeking to compel a writer to testify about his confidential sources for a 2006 book about the Central Intelligence Agency, a rare step that was authorized by Attorney General Eric H. Holder Jr.
The author, James Risen, who is a reporter for The New York Times, received a subpoena on Monday requiring him to provide documents and to testify May 4 before a grand jury in Alexandria, Va., about his sources for a chapter of his book, “State of War: The Secret History of the C.I.A. and the Bush Administration.” The chapter largely focuses on problems with a covert C.I.A. effort to disrupt alleged Iranian nuclear weapons research.
Mr. Risen referred questions to his lawyer, Joel Kurtzberg, a partner at Cahill Gordon & Reindel L.L.P., who said that Mr. Risen would not comply with the demand and would ask a judge to quash the subpoena.
“He intends to honor his commitment of confidentiality to his source or sources,” Mr. Kurtzberg said. “We intend to fight this subpoena.”
Hamilton Nolan at Gawker:
The government has subpoenaed New York Times reporter James Risen, asking him to reveal the secret sources he used in his book about the Bush Administration and the CIA. Meaning James Risen could be the next Judy Miller.
Not Judy Miller in the sense of being a government patsy; Judy Miller in the sense of sitting in jail in order to protect sources. According to the NYT, the government wants to know who Risen’s sources were for his reporting on “the C.I.A.’s effort to disrupt Iranian nuclear research;” Risen has a lawyer and plans to fight the subpoena, and presumably would go to jail to protect his sources. (This has happened to him before). The Obama administration, disappointing the free press once again! At least James Risen knows Bill Keller will keep his commissary account full.
Jesse Walker at Reason:
The lead prosecutor in the case is William Welch II, the same man heading up the prosecution of NSA whistleblower Thomas Drake for another set of Bush-era leaks. So I’ll just quote the same Julian Sanchez post that I cited when Drake was the case du jour:
the contrast [with] the non-reaction to other forms of lawbreaking makes the standard in effect for Bush-era misdeeds clear: If you illegally gathered information on members of the public, Obama’s DOJ would rather let sleeping dogs lie. If you illegally tried to get information to the public, you’d better lawyer up. From Main Justice to Fort Meade, message received.
The chapter dealt with a clumsy attempt at disinformation from the CIA in February 2000. The agency had hoped to derail Iranian research into nuclear weapons by surreptitiously giving them designs with flaws that would have rendered the devices impotent. Unfortunately, the Russian scientist who was supposed to give Tehran the plans found the flaws so obvious that he needed to correct them in order to maintain his own credibility. Just as unfortunately, no one knows whether the Iranians had figured out that the Russian scientist at the center of the plot was working for the CIA prior to the publication of Risen’s book, which the Times notes in this report.
The Bush administration got a subpoena in January 2008, but Risen stalled until after the election. He may have presumed that Barack Obama would not force his testimony on the matter, a perhaps reasonable assumption given the tacit support Senator Obama had expressed for Risen’s other exposés noted by the Times in this report. Instead, Eric Holder pursued a new subpoena — and now Risen has to either testify about his sources or go to jail for contempt of court.
Earlier this week, I covered a controversy about California’s shield law and noted that journalists have to protect sources in order to report effectively. I also argued that an exception should be made for national-security matters, given the nature of those efforts and the need to keep our tactics and assets from public exposure. Those who see wrongdoing within the system have other channels to use — either through the chains of command, or by going to Congress. This case, though, has the complication that the incident reported by Risen had been brought to Congress, which declined to act on it. Still, the leaker chose a rather uncourageous method of dealing with the failure; he or she could have made this information public and borne the consequences of breaking the laws on confidentiality for this material and putting the life of a CIA source at risk.
Overall, the White House and the DoJ made the right decision to enforce those laws through this subpoena.
I’m not convinced that the real motive, as Horton suggests, is to conceal ineptitude. I think it’s broader than that: to send a signal that the Greatest Crime one can commit is allowing breaches in the Absolute Wall of Secrecy that surrounds the public/private Surveillance and National Security State. If Obama has definitively demonstrated anything, it’s his commitment to preserving and even fortifying this wall (that’s what the promiscuous assertions of the State Secret privilege are about). One of the very few ways we learn about anything that happens in that realm is through conscientious whistle-blowers leaking what they know to journalists and others. Hence, the Obama DOJ wants to snuff out the possibility that any light will be shined on what is done through this method.
For any Democrat or progressive who wants to defend the issuance of this Subpoena, I have a question for you: when this controversy first arose in early 2008, did you defend the issuance of the very similar subpoena to Risen by the Gonzalez/Mukasey DOJ? If not, why not? What’s the difference? “Pragmatism” is not an answer.
Gabriel Schoenfeld at The Weekly Standard:
What gives? Is the president now unaccountably reversing field and waging a war on the American press? Or do we have here, finally, a recognition that the revelation of secrets, particularly those involving ongoing classified intelligence programs, can place us all at risk?
Scott Horton at Harper’s:
A 1960 congressional committee looking into the nation’s security classifications called secrecy “the first refuge of incompetents.” It was obvious even then that national-security classifications are often used to protect government officials from having their stupidities exposed. There may be cases when it serves the public interest in national security to keep mistakes under wraps. But mistakes that are kept secret are more likely to be repeated, and those who commit them are more likely to advance to positions in which they can do more costly damage. The passages of the Risen book that are now being scrutinized by prosecutor Welch expose just that sort of embarrassingly inept behavior. The public’s security was in this case plainly served by disclosure, and the prosecution that is apparently being mounted is another gallant defense of the government’s right to keep its inept conduct secret not from foreign enemies but from the American public. Such steps make us dumber, weaker, and less safe.
UPDATE: Gabriel Schoenfeld at Daily Beast