Few things bring about so furious a storm of media protest from the Left and the Right as does jailing a reporter. No wonder Attorney General Eric Holder, who is about to leave office and is no doubt concerned about his legacy, did not want to end his years in office by jailing James Risen, a Pulitzer Prize-winning New York Times reporter. At issue in the Risen subpoena case is his source for details of an operation bungled by the CIA. According to Risen, the CIA provided Iran, via a Russian scientist, with blueprints for a "nuclear bomb-triggering device" that the CIA had deliberately sabotaged by including a flaw. The Russian scientist told Iran about the flaw, and Risen alleged in his book that this operation consequently "assisted the Iranians in joining the nuclear club." In 2011, the court subpoenaed Risen to divulge whether former CIA officer Jeffrey Sterling had leaked to him state secrets about that operation and other United States intelligence activities in Iran.
Risen appealed the subpoena and announced that he would go to jail sooner than reveal his source. In his recent book, Pay Any Price: Greed, Power, and Endless War, Risen argues that his refusal to testify is doing the Lord's work, or at least that of the people, because the government protects its failures by making them into state secrets. The Supreme Court rejected his final appeal in 2014, which paved the way for the Justice Department to prosecute him for contempt of court should he refuse to testify. However, the Department of Justice announced on December 12 that it would not seek or enforce such a subpoena.
Most readers of the preceding lines, me included, would hold that the public should be informed about a poorly-designed operation such as the one at issue in the Risen subpoena case. This disclosure would cause no harm to national security, because Iran has already discovered and avoided the flaw. However, the question stands: Who is to judge whether the publication of other state secrets harms national security? Should each reporter or publisher be free to make this ruling? If yes, who qualifies these days as a reporter or publisher? One may trust the editor-in-chief of The New York Times, The Washington Post, or The Wall Street Journal -- but what about the editor-in-chief of The New York Post? The Village Voice? The National Inquirer? What about anyone who reports to or runs a blog?
Also, whoever leaked the information committed a crime and violated his sworn oath not to reveal state secrets. Risen seems to know who committed this crime. Indeed, as Sarah Chayes points out, that reporters are often "goading" government officials to hand over classified documents. Many believe that reporters should be protected by a 'shield' law when they seek such information. However, until Congress passes such a law -- should they be free to ignore laws all others have to abide by?
Last but not least, the Espionage Act of 1917 criminalized "provid[ing] classified information to those persons not authorized to receive it." "As it is currently written," writes the Reporters Committee for Freedom of the Press, "Knowingly receiving classified information that has been obtained illegally, as well as passing it on, also runs afoul of the Espionage Act." The press argues that reporting leaked state secrets is not a violation of the Act because reporters -- who have aired many other state secrets, including the names of CIA agents in the field, nuclear bomb designs, and the fact that the United States has a mole somewhere in al Qaeda's headquarters -- report to the public and not to the enemy. However, this is a questionable defense, because one must assume that ISIS, al Qaeda, and others who wish the United States harm will read such reports and draw on them.
Finally, Risen and others argue that the United States systematically over-classifies government information, and hence reporters cannot do their jobs without publishing classified information. This argument has considerable merit. Indeed, too much information is classified and the United States should classify less of it and declassify more. But as long as one grants that the United States' security requires that the state be able to keep some secrets, the question stands: should there be some limitations on the freedom of the press and who and how will determine what these ought to be?
Amitai Etzioni is a University Professor at The George Washington University and author. His latest book The New Normal: Finding a Balance between Individual Rights and the Common Good was just released by Transaction Publishers in November 2014. You can follow him on Twitter