An Onus to Uphold

If you’re looking for a nice safe and secure means of earning a living, you can’t possibly be thinking of becoming a journalist. Not in these days of confusion about what exactly the press is or will be. Journalism as a profession has always required more courage and ‘pluck’ than many an other means of earning a living. But for those who take a journalistic code of ethics to heart, it requires more; much more.

Shady stereotypes belie an underlying truth: this job involves stepping into shadows rather than avoiding them. To be worth your salt as a journalist you must also have a degree of integrity not required by most professions in the business world, if any. Most journalists earn a living via the market economy, but all serve the higher purposes of government as members of the Fourth Estate. This role is recognized in the U.S. at least, as fulfilling a crucial function of democracy. One must have a healthy ‘moral compass’ to do this job well.

One of the reasons for that is the grey area of laws concerning and affecting journalism; right down to the First Amendment. Americans might easily assume that at least freedom of the press is set in stone here. In fact, it’s not even clear that most Americans are clear on that. It’s not just the noble pursuit of getting facts straight that can run a journalist afoul: even facts themselves can put journalists in sketchy positions. There are examples throughout history of journalists coming across conflict -as per necessity- in ways that put their work and personal well-being in jeopardy: many journalists have gone so far as to die in the line of duty.

Endurance might be another quality well-suited to journalistic pursuits. The travails of New York Times investigative reporter James Risen are a case in point currently playing out in federal appellate court. Department of Justice prosecutors have been dogging Risen to “burn” a confidential source since at least as far back as 2008; no doubt during prior investigations; definitely when he was first subpoenaed during grand jury proceedings that led to the indictment in United States v. Sterling Dec. 22 2010; and ever since Sterling’s arrest on Jan. 6 2011.

Jeffrey A. Sterling is a former CIA employee accused of divulging classified information to Risen. It appears that Risen was approached by federal agents about Sterling as far back as 2003, in a successful effort to prevent him from publishing ‘something’ in the New York Times.

Risen’s ‘cooperation’ in this and other federal cases and investigations has been relentlessly pursued for a long time. In 2005 Risen and fellow New York Times writer Eric Lichtblau published a mind-blowing series of articles on warrantless domestic surveillance. For this work Risen and Lichtblau received a Pulitzer Prize. Jane Mayer of The New Yorker says “Risen has been a target of federal leak prosecutions ever since.”

Unlike former New York Times journalist Judith Miller who spent 85 days in jail, ultimately “burned” her source and forfeited her job, Risen seems thus far to have successfully resisted the demands and commands of federal prosecutors that he divulge something, anything having to do with Sterling, but most particularly whether Sterling was his source for certain material in “State of War”, the book he published in 2006: thus far he’s avoided incarceration as well. Whether Risen collected ‘some’ material as a journalist or as an author may be legally relevant.

In early 2002 Risen published an article in the New York Times about Sterling’s experiences in the CIA concerning racial discrimination. His initial contact with Sterling was probably right after 9/11. According to that article Sterling was “let go” in October 2001 and “the terrorist attacks [of 9/11] occurred just as the agency was dismissing him.” Item number 23 of the indictment asserts that Sterling disclosed classified information (to Risen) by November, 2001, and includes references to a slew of phone calls and emails between the two following that.

A press release about Sterling’s arrest reported by Robert Chesney on Jan. 6, 2011 notes that “according to the indictment” Sterling “was aware by June 2003 of an FBI investigation into his disclosure of national defense information.” It’s not too much of a stretch to surmise that Risen (being a national security correspondent specializing in intelligence) was well aware that he was being ‘observed’ by that time as well.

Indeed: Politico’s Josh Gerstein reported in early February 2011 that federal prosecutors in Sterling’s case had copies of Risen’s private credit reports, personal banking, credit card records, phone records, and information about his travel arrangements; all of which was being turned over to the court. According to Gerstein Risen was not shocked to hear this, but told Politico that it made him feel “like a target of spying.”

Gerstein also mentions something that would be alarming to anyone with a grasp of the rationale for laws, statutes, and administrative regulations designed to protect the role journalists play in U.S. democracy: shield laws, the legal liability of journalists’ in breach of agreement with confidential informants, and laws providing for journalist privileges and right of access. “First Amendment advocates” he says, are concerned that “those records . . . . could potentially expose a wide array of Risen’s sources and confidential contacts— information that might fall beyond the initial investigation that led to Sterling’s indictment.”

It’s been over 11 years since this all started. On Sept. 24 Risen’s attorney Joel Kurtzberg filed papers in response to yet another filing in Sterling vs. U.S made by federal prosecutors on Sept. 17; yet another attempt to get Risen to breach whatever contract he may have with Sterling.

Risen’s marathon resistance to the Justice Department’s attempts –throughout two presidency’s now- to coerce him into breaching an alleged agreement with a confidential source represents an admirable testament to his commitment to following a journalistic code of ethics –and protect what it represents. It sounds awfully complicated but really in this instance it’s very simple; As the Society of Professional Journalists’ put it in their code of ethics: “keep your promises.” Sometimes that is a helluva lot easier said than done.

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Appeal  11-5028 Doc: 73 Filed 09/17/201

Appeal: 11-5028 Doc: 74 Filed: 09/24/2012

Feds Spy on Reporter in Leak Probe. Josh Gerstein, Politico, February 25, 2011

Former CIA Officer Indicted for Disclosing National Defense Info to Reporter. Robert Chesney, Lawfare, January 6, 201

Sterling Indictment. Case 1:10-cr-00485-LMB Document 1 Filed 12/22/10

Fired by C.I.A., He Says Agency Practiced Bias. James Risen, New York Times, March 2, 200

Subpoena Issued to Writer in C.I.A.-Iran Leak Case. Charlie Savage, New York Times, May 24, 2011

House Democrats ask that Libby grant Judith Miller a special waiver to testify.Last in a series of reports from Murray Waas on his blog Whatever Already!, August 8, 2005 (and going back)

Telling Secrets: How a leak became a scandal. Nicholas Lemann, The New Yorker, November 7, 2005

Times and Reporter Reach Agreement on Her Departure. Katherine Q. Seelye, New York Times, November 9, 2005

James Risen’s Subpoena. Jane Mayer, The New Yorker, May 24, 201

The 2006 Pulitzer Prize Winners in National Reporting: James Risen and Eric Lichtblau. (the five articles in the series are here)

Former CIA officer Jeffrey A. Sterling charged in Leak Probe. Greg Miller, Washington Post, January 6, 2011 confirming that “Author A” in the indictment is Risen, and that “dozens” of alleged emails and phone calls between Risen and Sterling are described in detail and as dating back to 2002 in the the indictment

Classified Defendant No. 1. Amy Davidson, The New Yorker, January 6, 2011

Times Reporter Subpoenaed Over Source for Book, Philip Shenon, New York Times, February 1, 2008

Reporters Without Borders: For Freedom of Information (see the ‘Press Freedom Index’ –updated annually)

Why The First Amendment (and Journalism) Might Be in Trouble. Ken Dautrich and John Bare, Nieman Reports, Summer 2005 “Only 51 percent of 9th and 12th graders agree that newspapers should be allowed to publish freely without government approval of stories . . . “

Definition of ‘Fourth Estate’, the Free Online Dictionary

Integrity. Damian Cox, Marguerite La Caze, and Michael Levine, © 2011. Stanford Encyclopedia of Philosophy

Society of Professional Journalists’ Code of Ethics