Lessons from Wye River

From the Summer 2011 issue of The News Media & The Law, page 1.

New York Times reporter James Risen and his attorneys pulled a journalistic and legal coup in late July that many media law experts thought was nearly impossible: A federal judge quashed a criminal trial subpoena asking him to identify a confidential source who allegedly leaked classified information to him.

As Kristen Rasmussen’s story on page five explains, Risen spent the past five years fighting government efforts to force him to name the source for information found in a chapter of a book he published in 2006 about, among other things, CIA activities in Iran. Risen, a Pulitzer Prize winner, is one of the nation’s leading national security reporters. There is no question that cooperating with the government in the prosecution of former CIA employee Jeffrey Sterling (whom the government alleges was Risen’s source for the classified information at issue in the case) would negatively affect Risen’s ability to do his job.

The Reporters Committee for Freedom of the Press watched every legal maneuver in the Risen case and, frankly, marveled at the outstanding work done by his lawyers at Cahill Gordon and Reindel LLP. The U.S. District Court’s ruling in the case provides valuable guidance to journalists fighting to protect sources and the public’s right to know what the government is doing with their tax dollars. Yet an invitation-only conference I attended in early June makes me wonder if the multiple subpoenas served on Risen in the Sterling case are among the last we’ll see seeking the identity of a source for a national security-related story.

The Aspen Institute convened a “dialogue” (how’s that for non-profit think-tank-speak?) at its Wye River Conference Center between a handful of prominent national security reporters, lawyers, Congressional staffers from intelligence-related committees and senior representatives of national security-related agencies from the administrations of Barack Obama and George W. Bush. The ground rules were simple: We could report what was said by participants, but not who actually said it.

The Aspen meeting was a continuation of similar dialogues held in the aftermath of the failed attempt to enact the American equivalent of the British Officials Secrets Act during the Clinton years and efforts by the administration of George W. Bush to dramatically shut down information after Sept. 11, 2001. The last such summit had been convened chiefly by the Newspaper Association of America in 2006.

I wasn’t invited to the earlier dialogues, but participants, including National Security Archive founder Scott Armstrong and former CIA general counsel and current Arnold & Porter partner Jeffrey Smith, told me the tone of the meetings changed dramatically in 2011.

Whereas previously some agency representatives had grudgingly acknowledged that the public had been served by some reporting of classified information furnished secretly by government employees, the Obama administration folks were having none of it. The administration’s continued prosecution of government employees who some transparency activists consider to be bona fide whistleblowers makes this clear.

While some of these prosecutions were initiated during the Bush years, the Obama Justice Department has been aggressively pursuing these cases. In addition to the Sterling case, the collection of cases includes the largely collapsed case against former National Security Agency contractor Thomas Drake, former State Department analyst Stephen Kim, former FBI linguist Shamai Leibowitz and Bradley Manning, the Army private accused of leaking thousands of protected documents to the WikiLeaks Internet site.

As far as we at the Reporters Committee know, only the Sterling prosecution sought reporter testimony.

One Wye River participant said intelligence agency officials reacted to the WikiLeaks document dumps by immediately instituting a zero-tolerance policy toward government leakers. Such a policy is consistent with a discussion I participated in with President Obama in the Oval Office in March. Obama made clear he is supportive of whistleblowers who expose fraud and abuse in the government. But he draws the line at leaks of classified information.

New Yorker reporter Jane Mayer participated in the Wye River dialogue shortly after the magazine published her profile of Drake, the man prosecuted by the government for leaking NSA information and honored for his courage by government transparency advocates. Mayer’s article described in chilling detail the top-secret information-gathering capabilities of the NSA.

After reading Mayer’s article, I was not surprised when one national security representative at Wye River told us (rather gloatingly) on our last day: “We’re not going to subpoena reporters in the future. We don’t need to. We know who you’re talking to.”

The Risen victory notwithstanding, recalling that statement sends chills down my spine.