“They just keep coming at me,” Mr. Risen, a Times reporter in Washington, told me by phone last week. It has been 10 years since he learned of a secret C.I.A. program to interfere with Iran’s quest for nuclear weapons, and six since he got an ominous FedEx package containing a government subpoena. Since then, it has been one legal hurdle after another, trying to stay out of court.
Just over a week ago, another blow came: A federal appeals court panel ruled, 2 to 1, against his effort to avoid testifying in the government’s case against Jeffrey Sterling, a former C.I.A. official charged with leaking secret information about the matter.
Mr. Risen’s lawyers, backed by a flotilla of press organizations and journalists, argue that his testimony isn’t necessary and that First Amendment protections, combined with legal precedent, should keep him out of court.
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Unwilling to testify, Mr. Risen may end up in jail. Meanwhile, the distractions and the continued scrutiny of government investigators — sure to make sources skittish — have hurt his ability to do his job. That’s a shame given the importance of his work: it was Mr. Risen and his Times colleague Eric Lichtblau whodisclosed the Bush administration’s eavesdropping on American citizens without warrants, and the recent revelations of National Security Agency surveillance have built on that foundation.
The chilling ruling by the United States Court of Appeals for the Fourth Circuit said that even though a journalist has promised confidentiality to a source, “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.” National security necessitates that those who illegally leak classified information be brought to justice, the court said. It added that it saw no clear legal justification for treating a reporter differently than any other citizen, and that “other than Sterling himself, Risen is the only witness who can identify Sterling as a source (or not) of the illegal leak.”
Jill Abramson, executive editor of The Times, told me she was “bitterly disappointed in the court’s decision,” calling it a blow to “the ongoing important work that journalists do in holding powerful institutions and the government accountable to the people.”
The case has real-world consequences not only for journalists but for all Americans. It is part of a troubling trend that includes unprecedented numbers of criminal investigations involving leaked information; the obtaining of reporters’ phone records; and even one government claim that a journalist “aided and abetted” a leak.
Mr. Risen says investigative reporting that includes the use of confidential sources is “the only way to keep the government accountable.”
Judge Roger Gregory, in his dissenting opinion for the appeals court, agreed with Mr. Risen, writing that America’s founders intended the press as a check on government power. More specifically, he said, the reporting at issue, which appeared not in The Times but in Mr. Risen’s 2006 book about the C.I.A., “State of War,” was far from “extraneous.”
“Quite the opposite,” he wrote, “it portends to inform the reader of a blundered American intelligence mission in Iran.” Given the press’s failure to adequately scrutinize United States intelligence on Iraq’s weapons of mass destruction, Judge Gregory wrote, “it is hard to imagine many subjects more deserving of public scrutiny and debate.”
But that debate cannot come about without solid information — information that the government prefers to keep secret. It will not come out if sources do not believe they can speak confidentially.
If they cannot — and this ruling says they cannot — those sources will dry up. That is already happening.
News sources “are terrified now,” said Lucy Dalglish, the dean of the University of Maryland journalism school and formerly the executive director of the Reporters Committee for Freedom of the Press. “What bothers me the most is knowing that some of the really important stories in the recent past probably couldn’t be done now.”
She mentions, as a prime example, The Washington Post’s exposé of abuses at Walter Reed National Military Medical Center. In a court document in the Risen case, Carl Bernstein, the former Washington Post reporter who revealed government malfeasance at the highest levels, wrote that his Watergate articles could not have been written if confidential sources had not believed they would be protected.
“The public is in danger of learning only what the administration wants them to know,” Ms. Dalglish said.
David McCraw, a Times lawyer, put it this way: “The history of the past 40 years — from the Pentagon Papers to N.S.A. surveillance — has shown that the use of confidential sources enhances democracy and keeps government power in check.” The majority’s opinion in the Risen decision, he said in an e-mail, “turns a blind eye to all of that.”
The case will very likely now go to the full appeals court and perhaps eventually to the Supreme Court. Meanwhile, Kurt Wimmer, general counsel for the Newspaper Association of America, is advocating for a federal “shield law” to help protect the confidentiality of sources. Forty-eight states and the District of Columbia have similar special protection for journalists. Those laws have not kept law enforcement officials from doing their jobs. A federal law may not be a perfect solution, but it looks more and more like a necessity. Without it, Mr. Wimmer said, especially given the recent court decision, “whistle-blowers won’t blow the whistle. Sources will hunker down, and abuses won’t get reported.”
As Judge Gregory noted in his dissent, that outcome doesn’t just hurt journalists like Mr. Risen. It is “contrary to the will and wisdom of the founders,” and damages the way American democracy is supposed to work.