The New York Times intends to take its case against the Obama administration to the Supreme Court. In July, the 4th U.S. Circuit Court of Appeals sided with administration lawyers in ruling that New York Times reporter James Risen must reveal the confidential sources he used for a series of articles and a 2006 book, “State of War,” about the CIA’s bungled efforts to stop Iran’s nuclear program. On Tuesday, the 4th Circuit refused to change its mind, leaving the Supreme Court with the final say in the matter.
Mr. Risen’s investigative work has assumed new significance now that we’ve learned the breathtaking scope of the National Security Agency collection of telephone calls, emails and GPS location data. Mr. Risen won the 2006 Pulitzer Prize for exposing the existence of a domestic wiretapping program. This was a thin slice of the larger program, but it was a hotly guarded secret at the time. Attorney General Eric H. Holder Jr. personally authorized government agents to go after Mr. Risen in court, which gives his instructions every appearance of payback.
The federal government should never be allowed to engage in vendettas against the press, and this is not special pleading for newspapers. Exposing embarrassing foreign-policy failures and the existence of constitutionally questionable domestic surveillance enterprises is precisely the job of reporters in a free society. The Founding Fathers understood this, which is why the language of the First Amendment plainly says that Congress can’t do anything to abridge the freedom of the press. James Madison explained further that “the liberty of conscience and of the press cannot be canceled, abridged, restrained or modified by any authority of the United States.” Abridging press freedom is abridging the speech of everyone.
Nonetheless, the Obama administration has sought to restrain the press by seizing Associated Press telephone records, intimidating Fox News reporters and prosecuting journalists under the Espionage Act of 1917. These are messages to “back off, or else.” Pesky reporters might find facts that would embarrass the administration.
This is a foolish and futile effort. With the backing of dozens of powerful media organizations and a host of lawyers, Mr. Risen isn’t particularly worried about having to back down in the light of the threats. Far more troubling, he explained to MSNBC, is the “chilling effect on potential whistleblowers in the government.” The stories of retaliation tell those whistleblowers that “there’s a Big Brother out there who will get them if they step out of line.”
The Justice Department’s dim view of whistleblowers is clear from a training course for the Bureau of Alcohol, Tobacco, Firearms and Explosives that the agency placed online. It used a photograph of a French firing squad to say a thousand words about how the agency thinks “leakers” should be dealth with. Leaking is subjective term. What’s hidden under the cloak of national security can often be something the government shouldn’t be doing in the first place.
Whistleblowers won’t expose wrongdoing if they know reporters will give them up when the Justice Department comes knocking. The right to preserve the reporter’s privilege is every bit as compelling as a wife’s right not to testify against her husband or the attorney’s duty never to tell what his client tells him in confidence.
The 4th Circuit says it has no choice but to force the New York Times reporter to talk. “If Risen is to be protected from being compelled to testify and give what evidence of crime he possesses,” the court ruled, “in contravention of every citizen’s duty to do so, we believe that decision should rest with the Supreme Court.” We agree. The high court knows its duty, not to us, but to the Constitution the justices are sworn to defend.