The Obama administration, which touts itself as "the most transparent administration in history," continued its crackdown on government whistleblowers during criminal proceedings Tuesday as Federal prosecutors argued there is no privilege protecting reporters from revealing confidential sources.
In their Feb. 28 reply brief in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information to the New York Times, federal prosecutors wrote that Times journalist James Risen has no "reporter’s privilege" protecting him from revealing his sources.
"Contrary to Risen’s claim, the ‘newsworthiness’ of the information has no bearing on whether he should be required to disclose his source," prosecutors wrote. "The ‘newsworthiness’ of the information is irrelevant to whether Sterling committed a crime, and it is irrelevant to whether Risen, like any other citizen, must testify concerning his knowledge of that crime."
Risen allegedly incorporated information he received from Sterling into a chapter of his 2006 book State of War. The government indicted Sterling in 2010 for the unlawful disclosure of national defense information.
The Obama administration promised during its transition period to enhance "whistle-blower laws to protect federal workers." But in the three years since, the administration has charged more people under the Espionage Act—six total—than all previous administrations combined. The Espionage Act has only been enforced three other times since it was enacted in 1917.
Although many states have enacted statutes—commonly called "shield laws"—protecting journalists from being compelled by courts to reveal confidential sources, there is no federal statute.
The Supreme Court ruled in the 1972 case Branzburg v. Hayes that the First Amendment does not shield reporters from federal prosecution. Federal prosecutors have argued Risen had no constitutional standing to invoke reporter’s privilege.
Kyu Youm, a University of Oregon law professor and First Amendment scholar, said the government’s argument was persuasive. However, Youm and others criticized the prosecutors for over-reaching.
"The government is trying to use Mr. Risen to get information they should try and find from other places," Youm said. "This is raising a lot of questions about how much the government has done to perform its due diligence."
Sterling’s defense wrote that the prosecution’s demand for Risen’s testimony "serves to highlight the evidentiary gaps in its case against Mr. Sterling. Indeed, the Government concedes that without Mr. Risen’s testimony, it cannot even establish venue."
Jesselyn Radack is the national security and human rights director for the Government Accountability Project.
"We see what the government is ultimately aiming to do, which is go after journalists," Radack said. "Here they have subpoenaed Risen for the third time, so I think the war on whistleblowers is just as much a war on journalists."
Radack was also a Justice Department legal ethics adviser and the attorney for NSA whistleblower Thomas Drake, who was prosecuted under the Espionage Act. The case against Drake collapsed in June 2011; Drake pled guilty to one misdemeanor offense—misusing a government computer.
Radack said that, if the court sides against Risen, it will create a dangerous precedent.
"It's a backdoor way of creating an Official Secrets Act, which we don't have in this country and have gotten along without for 200 years," Radack said.
Twenty-nine media entities and nonprofit groups filed an amicus brief in support of Risen, arguing that "this nation's historical practice of respecting the confidentiality of journalists’ communications with their sources has been vital to ensuring that the press effectively performs its constitutionally protected role of disseminating information to the public, including information about the conduct of our government in the name of protecting the national security."
Professor Youm said that, even without a federal shield law, judges should be vigilant to prevent the government from subpoenaing reporters or as retaliation for publishing leaked info.
"Just because we don't have a shield law doesn’t mean federal judges can’t give the benefit of the doubt to journalists," Youm said. "We're talking about good-faith effort and due diligence by the government."