Ever since the President's illegal warrantless eavesdropping program was revealed by the New York Times' Jim Risen and Eric Lichtblau back in December, 2005, there has been a faction of neoconservatives and other extremists on the Right calling for the NYT reporters and editors to be criminally prosecuted -- led by the likes of Bill Kristol (now of the NYT), Bill Bennett (of CNN), Commentary Magazine and many others. In May, 2006, Alberto Gonzales went on ABC News and revealed that the DOJ had commenced a criminal investigation into the leak, and then "raised the possibility  that New York Times journalists could be prosecuted for publishing classified information."
That was one of the more revealing steps ever taken by Bush's DOJ under Gonzales: the administration violated multiple federal laws for years in spying on Americans, blocked all efforts to investigate what they did or subject it to the rule of law, but then decided that the only real criminals were those who alerted the nation to their lawbreaking -- whistleblowers and journalists alike. Even Gonzales' public musing about criminal prosecutions could have had a devastating effect -- if you're a whistleblower or journalist who uncovers secret government lawbreaking, you're obviously going to think twice (at least) before bringing it to light, given the public threats by the Attorney General to criminally prosecute those who do.
Eighteen months have passed since Gonzales' threats, and while there have been some signs that the investigation continues -- former DOJ official Jack Goldsmith, for instance, described how he was accosted and handed a Subpoena by FBI agents in the middle of Harvard Square, demanding to know what he knew about the NSA leak -- there had no further public evidence that the DOJ intended to pursue Risen and Lichtblau. Until now.
Yesterday, the NYT reported that Jim Risen was served with a grand jury Subpoena, compelling him to disclose the identity of the confidential source(s) for disclosures in his 2006 book, State of War. The Subpoena seeks disclosure of Risen's sources not for the NSA program (for which he and Lichtblau won a Pulitzer Prize), but rather, for Risen's reporting on CIA efforts to infiltrate Iran's nuclear program. Nonetheless, Risen's work on State of War is what led to his discovery that the Bush administration was illegally spying on Americans without the warrants required by law.
The issuance of a grand jury Subpoena to a reporter seeking the disclosure of confidential sources is one of the most serious steps the DOJ can take. If the reporter refuses to disclose his source(s) -- as reporters feel duty-bound to do, and, independently, as their future ability to uncover government secrets requires -- the reporter can be held in contempt and consigned to prison (Risen has indicated he will not comply). Judy Miller's refusal to disclose her sources in the Libby case, in response to a grand jury Subpoena, is what led to her imprisonment for 85 days, until she finally relented and revealed her sources. Had she not done so, she could have (and likely would have) remained imprisoned indefinitely.
Risen's book, State of War, was published in early January, 2006 -- more than two years ago. Why is it now, suddenly, that he is being subpoenaed to reveal his sources?
Issuing a Subpoena to a journalist poses such serious First Amendment threats that the DOJ has promulgated guidelines for what must occur in order for that to happen. Pursuant to Section III(A)(2)(l) of those guidelines -- "Subpoenas to the Media":
If the investigation involves media news gathering functions, the staff should first attempt to obtain the necessary information from non-media sources before considering subpoenaing members of the news media. If these attempts are unsuccessful and news media sources are the only reasonable sources of the relevant information, the staff should attempt to negotiate with the news media member or organization to obtain the information voluntarily. If such negotiations fail, the staff must seek the express approval of the Attorney General before issuing a subpoena.
Although one can't say for certain, it seems rather likely that what has led to the issuance of this grand jury Subpoena to Risen is that Michael Mukasey has apparently decided to make criminal investigations of such leaks one of his top priorities, and is prepared for a massive First Amendment fight with Risen and his publisher, Simon & Schuster, which likely will include a willingness to imprison Risen if he fails to comply -- just as the Neoconservative Right, still seething over Risen's role in exposing the President's NSA lawbreaking, has been demanding for some time.
One of the leading theorists of the "Imprison-the-NYT" movement has been Gabriel Schoenfeld of Norm Podhoretz's Commentary Magazine. He wrote a widely-cited article back in March, 2006 arguing that Risen, Lichtblau and even NYT Editor Bill Keller should all be criminally prosecuted under the Espionage Act and other statutes for publishing the NSA story:
The real question that an intrepid prosecutor in the Justice Department should be asking is whether, in the aftermath of September 11, we as a nation can afford to permit the reporters and editors of a great newspaper to become the unelected authority that determines for all of us what is a legitimate secret and what is not. Like the Constitution itself, the First Amendment's protections of freedom of the press are not a suicide pact. The laws governing what the Times has done are perfectly clear; will they be enforced?
On his Commentary blog yesterday, Schoenfeld gloated about the Subpoena to Risen and suggested a possible connection to not only Risen's work on the NSA story, but also Schoenfeld's own agitating for the imprisonment of these journalists. Schoenfeld wrote (referring to himself in the third person by the name of his blog, "Connecting the Dots"):
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Finally, action. A federal prosecutor has issued a subpoena to James Risen of the New York Times, one of two reporters at the paper who compromised the National Security Agency's (NSA) Terrorist Surveillance Program in December 1995 (sic). . . .
Why is this investigation proceeding now? Connecting the Dots has no inside information. But Connecting the Dots was seated at the same table as Michael Mukasey and his wife at two dinners in the last three years, back when the future Attorney General was still a mere federal judge. The leaks in the New York Times did not come up for discussion, but Mukasey made plain he was a close reader of COMMENTARY.
Did he read a certain article in COMMENTARY entitled Has the New York Times Violated the Espionage Act? That's a question James Risen -- and Bill Keller, too -- should be thinking about.
It's entirely unsurprising that Michael Mukasey sat socially with our nation's most extremist neoconservatives and declared himself a "close reader of COMMENTARY." After all, before his nomination was formally announced, the White House chose Bill Kristol to announce his selection and, in a lengthy article, to vouch to conservatives for what a fine AG Mukasey would make.
Mukasey was a long-time supporter of the neocons' favorite candidate, Rudy Giuliani and, prior to becoming Attorney General, was part of the Giuliani campaign. And it was Dianne Feinstein and Chuck Schumer -- both with neoconservative leanings (war supporters both, among other things) -- who jointly enabled Mukasey's confirmation by becoming the only Democrats on the Senate Judiciary Committee to vote in his favor.
Although there are still facts missing -- such as whether this Subpoena was actually approved by Mukasey rather than Gonzales -- it's hard to avoid the conclusion that the Grand Jury Subpoena was done at least with Mukasey's assent. It seems rather clearly to signify the intent of his Justice Department to more aggressively pursue reporters who disclose information embarrassing to the President.
It's hard to overstate how threatening this behavior is. The Bush administration has erected an unprecedented wall of secrecy around everything it does. Beyond illegal spying, if one looks at the instances where we learned of lawbreaking and other forms of lawless radicalism -- CIA black sites, rendition programs, torture, Abu Ghraib, pre-war distortion of intelligence, destruction of CIA torture videos -- it is, in every case, the by-product of two forces: government whistleblowers and reporters willing to expose it.
Grand Jury Subpoenas such as the one issued to Risen have as their principal purpose shutting off that avenue of learning about government wrongdoing -- the sole remaining avenue for a country plagued by a supine, slothful, vapid press and an indescribably submissive Congress. Mukasey has quickly demonstrated that he has no interest in investigating and pursuing lawbreaking by high government officials, but now, he (or at least the DOJ he leads) seems to be demonstrating something even worse: a burgeoning interest in investigating and pursuing those who expose such governmental lawbreaking and turning those whistleblowers and investigative journalists into criminals.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.