Obama still playing Bush subpoena game

Tuesday, May 4, 2010

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Different head coach, same play.

The Obama Justice Department has renewed a Bush-era subpoena against author James Risen, stemming from material in his 2006 book, State of War: The Secret History of the CIA and the Bush Administration. Risen also is a Pulitzer Prize-winning reporter for The New York Times.

The decision to continue the Bush effort to have Risen reveal his source or sources has disappointed free-press advocates, some of whom negotiated successfully with President Obama’s staff for support of a federal shield law that would block some subpoenas of journalists.

“The message they are sending to everyone is, 'You leak to the media, we will get you,' ” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, in a report by The Washington Post. In April, a former National Security Agency official, Thomas Drake, was indicted on charges that he gave classified information to a Baltimore Sun reporter.

A lawyer for Risen said the journalist would resist the subpoena and would not disclose his sources. Risen's position is similar to that of former New York Times reporter Judith Miller in 2005. She ended up spending 85 days in jail for refusing to identify confidential sources for the leaked identity of a CIA employee.

Even if the proposed shield law now in Congress were in effect, it’s not clear whether it would protect Risen because of a compromise that created a “national security” exception.

The Times — while noting that Risen is working with publisher Simon and Schuster, not the newspaper, to defend his book — said in a statement that “confidential sources are vital in getting information to the public, and a subpoena issued more than four years after the book was published hardly seems to be important enough to outweigh the protection an author needs to have.”

The Obama administration certainly is not unique in trying to force journalists who publish leaks to “name names.”

The Watergate scandal that brought down President Richard Nixon was an outgrowth of a covert “plumbers” operation to stop leaks related to the Vietnam War — but government attempts to coerce journalists into revealing sources goes back much further than that.

In 1848, John Nugent, a U.S. Senate correspondent for the New York Herald, was confined inside the Capitol building by a Senate committee investigating the source of a leak that led to the publication of the recently approved, but still secret, Treaty of Guadalupe-Hidalgo, which ended the Mexican War. A timeline on jailed and subpoenaed journalists prepared by Gordon Belt of the First Amendment Center notes that the Senate called on Nugent to disclose the source of the leak. He refused, saying only that the information had not come from a senator or Senate officer. Nugent was released a month into his confinement, with the Senate citing the journalist's health as the reason.

It’s somewhat ironic that Nugent’s case and this latest confrontation over confidential sources both involve matters that can be called national security. The bulk of such disputes between government and journalists — including the landmark case that established there was no existing federal “privilege” protecting newsgatherers from grand jury subpoenas, Branzburg v. Hayes, in 1972 — involved local or regional issues, often related to crimes far removed from diplomacy or the nation’s well-being.

There already are critics of the Obama administration’s delivery on pledges to provide more information to the public and to improve access to government data and policy documents. Those critics say the administration's efforts are not enough or are not happening fast enough. A flurry of recent stories have reported on the president’s lack of prime-time news conferences and on complaints from some journalists that the White House is playing favorites with interviews. (Ironically, given the Risen case, some claim he is favoring The New York Times).

A concerted effort to track down administration leaks via newsrooms and journalists might well backfire if Risen chooses continued silence over disclosure — and help those critics paint an even bleaker picture of the administration’s policies and practices on public information, transparency and openness.

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