In April 2009, the Department of Justice (DOJ) served a subpoena on New York Times reporter James Risen. DOJ wants to know his source for a story he published in his book, State of War: The Secret History of the CIA and the Bush Administration. The book describes a horribly botched CIA effort to disrupt the Iranian nuclear program. DOJ's issued an earlier subpoena during the Bush administration. That administration wisely abandoned the subpoena. However, according to Glenn Greenwald (writing in Salon.com), the revitalization of the subpoena by the Obama administration was “but one of many steps taken to dramatically expand the war on whistleblowers being waged by the current President” although he ran on a platform of protecting whistleblowers.
As a presidential candidate, Barack Obama promised to “strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government.” See Scott Horton's prior article in Harper's Magazine, discussed in this prior blog post. He also pledged to the National Whistleblowers Center that he would support legislation to give federal employee whistleblowers the remedies and procedural protections they have under Title VII (which includes a right to jury trials). But last May, The New York Times described how “the Obama administration is proving more aggressive than the Bush administration in seeking to punish unauthorized leaks.” Moreover, the Obama administration has shown its hostility to whistleblowers with (1) its preoccupation with stopping WikiLeaks, (2) prosecuting the group for publishing classified information, targeting WikiLeaks supporters with invasive harassment, (3) even serving subpoena on the Twitter accounts of several WikiLeaks associates, (4) its prosecutions of Thomas Drake and Bradley Manning, and (5) the failure to grant clemency to Brad Birkenfeld.
According to a new article by Scott Horton published in Harper's Magazine, Obama’s real policies are exposed in documents filed in the prosecution of former CIA agent James Stirling who was the alleged source behind the reports published by James Risen.ii In particular, one chapter in Risen’s book describes how a double agent turned on the CIA, after having disclosed the flaws built into some technical drawings designed to be worthless and which the agent had delivered to the Iranians. Thus, the CIA operation had actually advanced Iran’s nuclear project.
To justify the prosecution of Sterling, the DOJ contends that the disclosure harmed national security. But according to Scott Horton, the decision to go after Sterling seems to have more to do with “his violation of the intelligence community’s code of omertà, under which no agent ever speaks about another’s mistakes.”
In addition, Sterling’s defense lawyers, Ed MacMahon Jr. and Barry Pollack, revealed that the prosecution has turned over various telephone records showing calls made by Risen. The prosecution has also provided three credit reports for Risen, and has produced his credit card and bank records and certain records of his airline travel.
The revelation alarmed First Amendment advocates, particularly in light of Justice Department rules requiring the Attorney General to sign the subpoenas directed to members of the media and on requests for their phone records. Eric Holder had pledged that subpoenas issued against reporters would need the Attorney General’s approval. The question raised by Horton is the following: did Holder approve the Department’s secret seizure of Risen’s personal records?
In addition, Risen was subpoenaed to appear before a grand jury to testify about his sources. Last year, U.S. District Court Judge Leonie Brinkema quashed the subpoena. According to Horton, it looks like the Justice Department circumvented the ruling of a federal judge and grabbed Risen’s records even after its subpoena had been quashed.
The conclusion of the story is that the Justice Department asserts that it has weighed the people’s right to know, embodied in the Constitution, against the “right” of CIA officials “not to be embarrassed through the public disclosures of their mistakes,” and apparently the latter is the most important according to the DOJ.
Intern Julia Benke wrote this blog article.