PERRspectives: New York Times Reporter Subpoenaed Over Sources

February 1, 2008

New York Times Reporter Subpoenaed Over Sources

That cheering sound you may have heard this morning was conservatives' applauding the news that New York Times reporter James Risen has been subpoenaed in an effort to force him to reveal his confidential sources. But while Republican rage may be temporarily muted over the inquiry into Risen's 2006 book, many on the right won't be satisfied until Risen goes to jail for his cardinal offense, revealing President Bush's illegal domestic surveillance program.

The subpoena James Risen received from a federal grand jury last week did not concern his 2005 reporting on the NSA domestic spying program. Instead, the Justice Department wants Risen to divulge his sources for a chapter on Iran's nuclear program in his 2006 book, State of War. In it, Risen describes CIAs unsuccessful efforts during the Clinton and Bush administrations to infiltrate the Iranian nuclear program. Ordered to appear before the federal grand jury in Alexandria, Virginia on February 7, Risen apparently has no intention of revealing his confidential sources:

"We intend to fight this subpoena, so we'll likely be engaging in some sort of litigation," Mr. Kelley said. "Jim has adhered to the highest traditions of journalism. He is the highest caliber of reporter that you can find, and he will keep his commitment to the confidentiality of his sources."

For many in the Bush administration and its fellow travelers, the prospect of Risen going to jail for contempt is delicious payback. It will just be for the wrong crime.

It was Risen and his New York Times colleague Eric Lichtblau who on December 16, 2005 broke the story that President Bush had authorized the National Security Agency (NSA) to illegally intercept electronic communications within the United States without the FISA warrants required by law. And ever since, the two have been targets for right-wing retribution.

On December 19th, 2005, President Bush raged about what he deemed "a shameful act" that is "helping the enemy". Claiming he didn't order an investigation, Bush added "the Justice Department, I presume, will proceed forward with a full investigation" At a subsequent press conference that same day, Attorney General Alberto Gonzales suggested the retribution that was to come:

"As to whether or not there will be a leak investigation, as the President indicated, this is really hurting national security, this has really hurt our country, and we are concerned that a very valuable tool has been compromised. As to whether or not there will be a leak investigation, we'll just have to wait and see."

The Bush White House was far from alone in seeking payback for Risen and Lichtblau's revelations of the President's law-breaking. Conservatives began to clamor for legal action against the reporters and the ultimate target, the new York Times.

After FBI agents raided the home of suspected NSA leaker Thomas Tamm last August, Commentary editor Gabriel Schoenfeld renewed his call for the indictment of the New York Times for its publication of the NSA story. Perhaps sensing a momentum shift with the Tamm raid and the Democrats' capitulation on the draconian new FISA law, Schoenfeld reasserted his 2006 claim that the New York Times violated federal criminal statutes, if not the Espionage Act of 1917.

While Schoenfeld saw the odds of the weakened duo of President Bush and Alberto Gonzales pursuing a Time indictment as ".000001 percent," he advocated that the article's authors James Risen and Eric Lichtblau get the Judith Miller treatment:

"With the investigation making progress, the possibility remains that even if the New York Times is not indicted, its reporters - James Risen and Eric Lichtblau - might be called before the grand jury and asked to confirm under oath that Tamm, or some other suspect, was their source. That is what happened to a whole battalion of journalists in the investigation of Scooter Libby in the Valerie Plame fiasco.
If Risen and Lichtblau promised their source confidentiality, they might choose not to testify. That would potentially place them, like Judith Miller in the Libby investigation, in contempt of court and even land them in prison."

Schoenfeld is nothing if not consistent. He has been leading the President's amen corner in the charge against the New York Times ever since Attorney General announced the DOJ's leak probe on December 30, 2005. On June 6, 2006, Schoenfeld appeared before the Senate Judiciary Committee to make his case. One month later on July 3, he laid out his case in the Weekly Standard, approvingly cited Gonzales' veiled threats towards the New York Times:

"There are some statutes on the books, which, if you read the language carefully, would seem to indicate that that is a possibility."

Judging from the reaction of the Judiciary Committee in June 2006 at least, Senators of both parties have little enthusiasm for prosecuting the New York Times. During hearings investigating the NSA leak, the Espionage Act and the potential need for a reporters' shield law, Matthew W. Friedrich, then the principal deputy attorney general of the Justice Department's criminal division, refused to say whether or not Bush administration has ever considered prosecuting journalists for publishing leaked national security information. Then chairman Senator Arlen Specter (R-PA) told Friedrich, "I'm not interested in history this morning. I'm interested in current events." And Iowa Republican Chuck Grassley added, "I would think that the department would send somebody here to testify that could answer our questions if they [had] any respect for this committee whatsoever."

But for the conservative movement, the prosecution of James Risen obviously isn’t about respect either for a Senate committee or for the law (which President Bush obviously flouted). It's about payback, pure and simple. And regardless of what happens next week in that Virginia courtroom, the calls for James Risen's head won't end any time soon.

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