Secrecy & Leaks

James Risen Needs to Read the NYT

By Jack Goldsmith
Wednesday, March 26, 2014, 9:42 AM

Andrew Beaujon at Poynter reports that at last week’s Sources and Secrets conference, NYT reporter James Risen, who is fighting a subpoena for information in the Jeffrey Sterling trial, made these remarks:

1) The Obama administration is “the greatest enemy of press freedom that we have encountered in at least a generation.”

2) The administration wants to “narrow the field of national security reporting [to] create a path for accepted reporting.”

3) Any journalist who exceeds those parameters “will be punished.”

4) The administration’s aggressive prosecutions have created “a de facto Official Secrets Act.”

Taking these points in order, and assuming that Beaujon has accurately reported Risen’s remarks:

1) Maybe, if you measure the seriousness of the enemy by number of leak prosecutions, which I assume Risen does.

2) True, but every administration does this. It is part of the game that journalists play. As Bart Gellman has written: “In practice, the flow of information is regulated by a process of struggle as the government tries to keep its secrets and people like me try to find them out. Intermediaries, with a variety of motives, perform the arbitrage. No one effectively exerts coercive authority at the boundary. And that’s a good thing."

3) Not true. Just about every day Risen’s newspaper publishes national security information, much of it classified, that infuriates the administration either because it is inaccurate, or classified, or simply inconvenient. Punishment of journalists is exceedingly rare. They are never prosecuted, even when the publications appear to violate federal law. Very occasionally, in the course of a criminal trial, a reporter’s notes will be subpoenaed. Risen is one such example. Whether this is “punishment” of the reporter or an attempt to vindicate federal criminal law, or both, is in the eye of the beholder. But it is not true that journalists are always, or usually, punished for national security reporting that exceeds White House preferences. Even viewing the situation uncharitably for the administration, “punishment” is exceedingly rare.

4) This is nonsense. The Official Secrets Act permits prosecution of journalists for publishing national security secrets, and in England it can actually happen, and as a result many, many fewer English national security secrets are published in English newspapers. We have nothing like this in the United States, as any reader of the enormous, almost-daily trove of national security secrets published with impunity in Risen’s newspaper can discern.