- - Wednesday, January 7, 2015

New York Times reporter James Risen should enjoy an absolute constitutional privilege to refuse to testify about anything he did or learned in the course of traditional journalistic activities in the Espionage Act trial of former CIA officer Jeffrey A. Sterling.

Indeed, all media reporters should command that same privilege to ensure that self-government and the rule of law flourish.

The media has come to perform the constitutional role of Congress in overseeing the Executive Branch to detect fraud, waste, abuse, criminality, or deceit. Members complain that they learn more about the intelligence community from whistleblowers speaking through newspapers than from intelligence briefings. But they do nothing to remedy the monumental problem of executive secrecy — for instance, enactment of a law that would prohibit the expenditure of any monies of the United States to collect or analyze intelligence that is not shared with Congress in public hearings or executive session to protect sources and methods.

Such staggering congressional indolence is alarming. It is what provoked Edward Snowden to go to the media rather to Congress.

Woodrow Wilson, writing in Congressional Government, elaborated on the importance of congressional oversight to our democratic dispensation:

“Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function.”

But as the American republic evolved into an American empire, government secrecy became the rule, the executive supremacy became the norm, and the legislative branch became a constitutional inkblot.

The media is the only institution now that provides organized scrutiny of government. In performing that vital task, reporters should enjoy in their journalistic roles the same absolute immunity from government investigation or prosecution that members of Congress enjoy under the Speech or Debate Clause for actions with the legislative sphere proclaimed by the U.S. Supreme Court in Gravel v. United States.

Virtually every post-9/11 abuse by the Executive Branch was revealed by the media: predator drone killings of citizens and thousands of civilians, waterboarding, black site prisons, extraordinary renditions, the Terrorist Surveillance Program, and the NSA’s suspicionless collection, retention, and analysis of telephony metadata concerning the entire U.S.  population.

Prior to 9/11, the Pentagon Papers were disclosed by The New York Times and The Washington Post. The CIA’s “Family Jewels” that occasioned the Church Committee investigation of the intelligence community was disclosed by New York Times reporter Sy Hersh. He also disclosed the My Lai massacre in Vietnam. President Nixon’s secret illegal bombing of Cambodia was revealed by William M. Beecher of The New York Times. And Bob Woodward and Carl Bernstein along with “Deep Throat” were responsible for the Senate Watergate investigation that culminated in Nixon’s resignation.

Writing in New York Times v. United States, Supreme Court Justice Hugo Black observed: “In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”

The central role of the media in checking government abuses was why Thomas Jefferson avowed, “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”

By a razor-thin 5-4 majority, the Supreme Court blundered 42 years ago in Branzburg v. Hayes in denying reporters a constitutional privilege to keep their sources secret. The time has come to overrule that precedent as a museum piece. Justice Louis D. Brandeis lectured, “The court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.”

For more information about Bruce Fein, visit brucefeinlaw.

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