Pressing the Limits of Free Press

by Elias Bresnick

Illustration by Sara Kahn

published September 12, 2014


In June of 1972, two little-known journalists working for The Washington Post were assigned to report on a burglary at Watergate, an office building in downtown Washington, DC that happened to house Democratic Party headquarters. Though it appeared they had no more evidence than reporters at any other news outlet, over the next two years, Bob Woodward and Carl Bernstein revealed a series of “dirty tricks” the Nixon administration had employed during its reelection campaignmost notably bugging the offices of political opponents. As the reporting duo continued to unearth a wealth of incriminating evidence that would later lead to Nixon’s resignation, the public marveled at their ability to almost miraculously discover scandals well before the FBI.

The thing was: Woodward had an in.

As would later be revealed in the duo’s 1974 book, All the President’s Men, FBI Associate Director Mark Felt – codenamed “Deep Throat” – had been leaking classified information to the pair from the beginning of the fiasco. Bernstein and Woodward refused to name, or even admit the existence of a confidential source within the government until after the scandal had ended. Without Felt’s contribution, it’s unclear just how many of the crimes committed at Watergate would have been brought to light.

Whistleblowing has come to be broadly recognized as an act of courage in recent years. President Barack Obama, who ran on a platform of increased government transparency, tacitly endorsed whistleblowers in his 2007 Obama-Biden Plan, stating that, “Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled.”

With the vaunted goal of transparency in mind, it may come as a surprise to find that, the Obama administration has prosecuted more leakers in its two terms than all other presidential administrations combined. The recent Edward Snowden case marks the eighth time since 2009 that charges have been filed against government agents under the Espionage Act, compared with just three total during all other presidencies since the act was established in 1917. While it may be true that the president wants more information out in the open, as for the secrets he wants hidden, he seems to reserve a particularly vicious protective urge. Speaking about the Obama administration in a report dated October 10, 2013, former Washington Post editor Leonard Downie wrote, “The war on leaks and other efforts to control information are the most aggressive I’ve seen since the Nixon administration.”

Other players in government, such as attorney general Eric Holder, have come to the defense of the Obama administration, noting that the digital age has made it easier than ever before to release vast amounts of information all at once. With the ability to download hundreds of thousands of classified documents onto a disk drive, as in the 2010 case of Bradley Manning, leaking information has never been easier.


All this has led up to the case of James Risen B’77, a New York Times reporter who is currently being subpoenaed by federal prosecutors for information in a case against Jeffrey Sterling. Sterling, a former CIA official, has been indicted by the government for leaking details of a failed operation against Iran’s nuclear program. Sterling’s leaks appeared in Risen’s 2007 book, State of War, prompting the government to request Risen’s testimony against Sterling in court. Though the facts of the case seem relatively mundane, this case is a monumental moment in the fight for the First Amendment guarantee of freedom of the press.

For seven years, Mr. Risen has doggedly refused to identify his source for the controversial chapter in his book. Citing Reporter’s Privilege, a set of loosely defined laws that protect a reporter’s right to keep his sources confidential, Risen simply refuses to budge. At this point, with all his legal options exhausted, Risen says he’s willing to face jail time if need be, even claiming to have picked out the books he’ll take along with him. As he said in a recent interview for the Times, the choice is simple: “Give up everything I believe inor go to jail.”

For the journalistic community, the stakes are enormous: if journalists can’t guarantee protection to confidential sources, information available to the public about government misconduct will undoubtedly decrease. If “confidential” sources are unconvinced that their names will remain anonymous, it follows that far fewer people will be willing to risk their careers and even their freedom in order to point out flaws in the system.

To this effect, Daniel Ellsberg, the legendary leaker of the Pentagon Papers, wrote in a petition defending Risen, “The pursuit of Risen is a warning to potential sources that journalists cannot promise them confidentiality for disclosing Executive Branch criminality, recklessness, deception, unconstitutional policies or lying us into war.”

It has been repeatedly documented that the government classifies too much information. Take, for example, a recent report by the Brennan Center for Justice called “Reducing Overclassification Through Accountability.” The report shows that a vast number of secrets protected by the classification system pose no threat to national safety. As can be seen in many of the leaks released by Edward Snowden and Bradley Manning, often the information that remains classified is simply the type which, if revealed, would merely embarrass the United States.

In a statement supporting Risen’s refusal to cooperate with the governmet, Delphine Hagland, the director of Reporters Without Borders’ Washington office, said elegantly, “Freedom of the press is the most important freedom, it is the freedom that allows us to verify the existence of all other freedoms.”

While Risen’s case and the call for assured confidentiality of sources have picked up widespread support across the nationa notable collection of more than 20 Pulitzer Prize winners have come to his defensethe issue at hand is more ambiguous than it would appear at first glance.

In a 2013 news conference, Obama explained that “leaks related to national security...can put men and women in uniform that I’ve sent into the battlefield at risk. I don’t think the American people would expect me, as Commander-in-Chief, not to be concerned about information that might compromise their missions or might get them killed.”

The Post agreed in an editorial, stating that “there is a core of true national security information that does need to be confidential... [I]f reporters were completely immune from testifying, those laws and rules would be toothless. Without the key witness, many leaksno matter how damagingwould be impossible to prove, and even information that all agree is properly classified would be impossible to protect.”

The problem, then, is that if the government can’t compel journalists to hand over the identity of leakers, both whistleblowers and traitors alike will have equal opportunity to release classified information without fear of punishment, as the seal of Reporter’s Privilege would prove absolute.


The current state of affairs sets up an interesting, if intractable, question: will the nation set a precedent for confidential sources to be revealed, diminishing the number of these sources and trusting the government not to abuse its own power; or will we allow insiders to publish national secrets with impunity and threaten to compromise the covert nature of agencies like the CIA and FBI?

The roadblock to answering the problem is this: the essential difference between whistleblowing and treason relies on a qualitative assessment. Take the extremely polarizing case of Edward Snowden, for example. While the Obama administration and many Americans view Snowden’s recent revelations as treasonous criminality, a good portion
of US citizens on the other side view him as a heroic figure bent on revealing the NSA’s wastefulness and abuse of power. One side sees Snowden as a criminal for breaking the law; the other side believes his breaking of the law exposes the very illegitimacy of law itself. Peeling back the histrionic rhetoric used by both sides
“traitor” versus “hero,” and nothing in betweenexposes the most essential problem: how can a coherent and fair justice system be put in place for whistleblowers who commit crimes in the interest of justice?

A law does exist for this purpose. Known as the Whistleblowers Protection Act, the law offers protection for government employees who report misconduct. Under the law, whistleblowers are encouraged to report offenses to the investigative Office of Special Counsel. But with a track record of only three out of 56 cases brought before the committee resulting in a positive verdict for the plaintifs, the act does not appear to offer genuine sanctuary for whistelblowers.

Where can we draw the line between whistleblowers and traitors? Should we judge each new perpetrator by his intentions or by the effect of his actions? Is it possible to come up with a governing body that can adjudicate issues of whistleblowing without an inherent bias?


In a statement given to the news outlet Pro Publica, the Justice Department claimed it doesn’t target whistleblowers who follow the rules, but admitted that it “cannot sanction or condone federal employees who knowingly and willingly disclose classified information to the media or others not entitled to receive such information.” In a sly showing of equivocation, the DOJ’s statement would seem to imply that the government condones whistleblowers even as it condemns whistleblowing.

With all that said, the pressing question remains: does the case of Jeffrey Sterling and James Risen amount to whistleblowing? Decide for yourself. In his 2006 book, State of War, Risen details a botched CIA plan to delay the progress of Iran’s nuclear program. In a story more far-fetched and mystifying than the plot of Showtime’s hit TV show “Homeland,” CIA operatives gave a Russian defector phony nuclear blueprints to pass along to Iranian officials. The hope was that the Iranians would assume the blueprints for a “TBA 480 high-voltage block” were legitimate and would waste crucial resources constructing a bomb that, when detonated, would offer nothing more than a tantalizing fizzle. “Operation Merlin,” as it was called, quickly ran amok, as the Russian chosen to pass along the blueprints proved unreliable. Hoping to hedge his bets by carrying out orders and not angering Iran, he tipped off Iranian officials in a handwritten letter stating that the plans were, in fact, fake. The pay off? With detailed knowledge of what exactly in the blueprints was phony and what was authentic, it’s possible that Iranian scientists were able to use what was genuine in the prints to their advantage. Like giving someone a car without an engine, the US had still offered up valuable information on some of the bomb’s essential parts. Ultimately, the operation was categorically reckless: an ill-conceived and colossal failure.

Risen concludes the chapter noting that this “espionage disaster, of course, was not reported. It left the CIA virtually blind in Iran, unable to provide any significant intelligence on one of the most critical issues facing the USwhether Tehran was about to go nuclear.”

So, was this fiasco something the American people ought to have known about? Was Sterling’s intervention genuine whistleblowing or simply the release of classified information for personal gain? Is the government justified in going after Sterling, and by extension Risen, for a story about a bunch of bumbling CIA officials?

In a particularly damning piece of criticism, journalist Dana Priest wrote, “If the US government were so concerned about the information revealed in Risen’s stunning chapter on a now 14-year-old CIA operation against Iran gone wrong, it would have moved quickly to resolve this matter eight years ago when it was first published. Instead, it seems obvious now that what officials really want is to hold a hammer over the head of a deeply sourced reporter, and others like him who try to hold the government accountable for what it does, even in secret.”

New York Times writer Maureen Dowd added pointedly in a recent op-ed that “the tale made the CIA look silly, which may have been more of a sore point than a threat to national security.”


Many observers view the Risen case as an act of pure retaliation, one that has nothing whatsoever to do with national safety. Risen’s book challenged the Bush administration on a number of levels, and some believe the government’s reaction might just be payback. Gregg Leslie, a legal defense director at the Reporters Committee for Freedom of the Press, stated, “The government likes to keep its house in order and likes to go after every possible leaker it can find. They really just don’t believe in whistleblowers.”

As it stands, Risen is waiting for the subpoena to be either renewed or retracted. With widespread supporta petition in support of him recently garnered its 100,000th signatureRisen has become the poster child for First Amendment freedom of the press to print the truth.

As Presidents George W. Bush and Barack Obama classified more and more of the government’s actions over the last 14 years,” wrote Dana Priest, “it has fallen to reporters like Risen to keep Americans informed and to question whether a gigantic government in the shadows is really even a good idea. We will all be worse off if this case proceeds.”

Both sides have elements that merit, at the very least, dialogue. On the one hand, the government has a necessity to keep classified information a secret if it wants results from its covert agencies like the CIA and FBI; on the other, the press has an obligation to reveal government abuse of power. Without a doubt, though, government officials should be more afraid of breaking the rules than should be the journalists who report on them. Democracy fails without an aggressive and undaunted press.

A few weeks ago, Risen sat on a panel of journalists discussing the future of press freedom. Gruff and impersonal, the steely look plastered on his face throughout the hourlong discussion suggested a man unwilling to compromise. For him, the case lacks any ambiguity. In a recent conversation with Maureen Dowd, Risen refused to mince words: “A lot of people still think this is some kind of game or signal or spin. They don’t want to believe that Obama wants to crack down on the press and whistleblowers. But he does. He’s the greatest enemy to press freedom in a generation.”