Press in Handcuffs
New York Times Public Editor Margaret Sullivan wrote in the paper’s Sunday edition that James Risen, a reporter in the Washington bureau, said: “They keep coming at me.”
Nearly 10 years ago “he learned of a secret C.I.A. program to interfere with Iran’s quest for nuclear weapons.” This was not for the Times but for a book written by him and colleague Eric Lichtblau; in it they “disclosed the Bush Administration eavesdropping on American citizens without warrants…”
A week ago Friday a three-judge panel from the United States Court of Appeals, sitting in Richmond, ruled by a split decision that Mr. Risen would have to testify who the source was in the 2006 book. The George W. Bush Administration tried to get him to talk; they gave up. They revoked the attempt. President Barack Obama’s Justice Department took it up, specifically Attorney General Eric Holder – obviously a stickler for the law. I’ve read most of the stories published about the incident.
The New York Times has been in bed at most times with the first African-American chief executive. What would it profit Mr. Obama to slice the newspaper’s throat? I confess: I’m mystified. On May 23, the president opined: “Journalists should not be at legal risk for doing their jobs.”
But Fourth Circuit presiding Judge William Byrd Traxler wrote:
“There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”
The only judge appointed to Richmond’s United States Court of Appeals for the Fourth Circuit by Mr. Obama, Albert Diaz, agreed. Judge Roger Gregory heartily dissented: “Quite the opposite, it portends to inform the reader of a blundered American mission in Iran.” By the way, Mr. Gregory’s appointment to the court was started by Bill Clinton. To finish the line, Mr. Traxler’s path to the chief judge began with President Clinton.
The possibility? Mr. Risen might have to go to jail but only after the full appeals court and perhaps the Supreme Court – which might take the rest of the three years Mr. Obama expects to spend in the White House. Shakespeare’s Hamlet spoke of “the law’s delay.”
To quote again New York Times Public Editor Sullivan: “As Judge Gregory noted in his dissent. It is ‘contrary to the will and wisdom of the founders,’ and damages the way American democracy is supposed to work.”