If former Vice Chairman of the Joint Chiefs of Staff James “Hoss” Cartwright actually gets indicted for leaking about the Stuxnet virus to David Sanger of the New York Times, I will be impressed. No one as high ranking has even been prosecuted for divulging classified information. If Private Bradley Manning is going to prison for a few decades, equal justice would require that James Cartwright should, too, provided that the charges are proven in court.
On the other hand, the 4th Circuit Court of Appeals ruling in the Jeffrey Sterling/James Risen case cannot be allowed to stand. If it does, no reporter will ever be able to guarantee anonymity a national security source again. For now, the ruling only governs the 4th District, but that includes Maryland and Virginia, and thus the NSA, CIA, and Pentagon. The two judges who voted against Mr. Risen were both originally nominated by a Democratic president, as was the dissenter.
Judge Roger Gregory, the third member of the panel, filed a vigorous dissent, portraying his colleagues’ decision as “sad” and a serious threat to investigative journalism.
“Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial,” he wrote. “The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society.”
It ought to be enough that the government can prosecute leakers if they can figure out on their own who they are.
The ruling was awkwardly timed for the Obama administration.
Attorney General Eric H. Holder Jr. has portrayed himself as trying to rebalance the department’s approach to leak investigations in response to the furor over its aggressive investigative tactics, like subpoenaing Associated Press reporters’ phone records and portraying a Fox News reporter as a criminal conspirator in order to obtain a warrant for his e-mails.
Last week, Mr. Holder announced new guidelines for leak investigations that significantly tightened the circumstances in which reporters’ records could be obtained. He also reiterated the Obama administration’s proposal to revive legislation to create a federal media shield law that in some cases would allow judges to quash subpoenas for reporters’ testimony, as many states have.
“It’s very disappointing that as we are making such good progress with the attorney general’s office and with Congress, in getting them to recognize the importance of a reporter’s privilege, the Fourth Circuit has taken such a big step backwards,” said Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press.
The fact that the Department of Justice is changing it’s policy in instructive. It teaches us why it is important that the First Amendment provide a constitutional privilege. Otherwise, the freedom of the press to collect classified information is malleable.
