Supreme Court Won’t Intervene in Obama Administration’s War on Journalists, Leakers

Amid the flurry of activity
announced from the Supreme Court today, one simple order put an end
to New York Times reporter James Risen’s legal efforts to
refuse to identify a confidential source used in his book,
State of War. The Supreme Court declined to hear his
case.

The source is alleged to be Jeffrey Sterling, a former CIA
official the Department of Justice is trying to convict under the
Espionage Act for supposedly detailing to Risen a secret plan to
sabotage Iran’s nuclear research. Risen included the information in
his book, published in 2006.

Risen has said he would go to jail rather than give up his
source. The Supreme Court’s unwillingness to take up the case
leaves intact an order from the Appeals Court for the Fourth
Circuit to comply with the subpoena. But though Risen could face
jail for contempt, the New York Times
notes that the Department of Justice may not be willing to push
that far:

Attorney General Eric H. Holder Jr.
hinted last week that the Justice Department might choose not
to ask the trial judge to jail Mr. Risen for contempt should he
refuse to testify.

The Obama administration has pursued leaks aggressively,
bringing criminal charges in eight cases, compared with three under
all previous administrations combined.

At the same time, the administration has supported efforts in
Congress to create a federal shield law that would allow judges to
quash some subpoenas to journalists. The Justice Department has
also issued
new internal regulations limiting the circumstances in which
prosecutors can subpoena reporters’ testimony and records.

While the proposed federal shield law and new internal
regulations sound like positive developments, I’ve
previously noted that both the proposed law and the regulations
have holes you could drive a newspaper delivery truck through.
Given the nature of the information provided to Risen, it seems
unlikely the proposed federal
shield law (pdf) would have protected him even if it were in
place. It has a significant “national security” exemption that
encourages deference to federal claims.