The Obama administration has had a tough time fighting the War on Leaks. From Bradley Manning's arrest in the WikiLeaks controversial to the successful subpoenaing
of Twitter, critics have heralded the Presidency as one of the most anti-leak executive reigns in recent history.
And a new chapter was written
in the War's history books yesterday.
Four years ago, Pulitzer-Prize winning New York Times reporter James Risen wrote a book entitled "State of War: The Secret History of the CIA and the Bush Administration." In it, Risen used leaked information from former CIA agent Jeffrey Sterling, who is now being charged with releasing classified details about a botched plot against Iran. That little inclusion led Attorney General Eric Holder to subpoena Risen three (failed) times to testify against Sterling.
He has pleaded the Fifth
on all occasions, arguing that he had a "reporter's privilege" - a doctrine that keeps the press out of cases like this on the basis that they are simply the middlemen of information. And, in 2011, a federal judge ruled that he had a "qualified privilege" to keep his mouth shut, saying that a subpoena gave no right for the government to "rifle through a reporter's notebook."
But, on Friday morning, it looked like the Department of Justice could care less.
DOJ appellate lawyer Robert A. Parker took a revisionist approach to the freedom of the press, comparing the refusal of Risen to testify to that of a drug deal. Here's his logic: not being accountable to leaked information is like if a reporter received drugs from an unknown source and refused to talk about it. In this sequence of events, leaked information regarding secret operations is equivalent to buying weed. How's that for justice?
In response to that leaks-drugs analogy yesterday, federal judge Robert Gregory simply said, "You think so?" We are asking that ourselves, too.
But Parker is basing that analogy on a court case from 1971 called Branzburg v. Hayes
, in which a federal court decided that a reporter must
testify if they witness a crime. The decision was made after a reporter watched drug dealers synthesize the product and then wrote about it in a Louisville newspaper. Maybe that's where the drugs reference came from.
However, the only difference, according to the judges, is that obtaining leaked information is not the same as witnessing a crime - what Risen did was that of disclosure, not criminal activity.
journalist argued this point
at the beginning of the month in front of the National Press Club, in which he chastises the Obama administration for stepping on the press's rights: "The basic issue is whether we can be a democracy without aggressive investigative reporting."
It will be interesting to see what the Fourth Circuit Court of Appeals rules on the existence of a "reporter's privilege" in the field of leaks. With occasions of this seemingly popping up everywhere, a decision against Risen could be a benchmark in the history of the freedom of the press. And a plus for the Obama administration's War on Leaks.