In early 2003, James Risen, an investigative reporter in the Washington bureau of The New York Times, prepared a story about a covert CIA effort to undermine Iran’s nuclear program. Before publishing it, he informed the CIA of his findings and asked for comment. On April 30, 2003, according to a subsequent Justice Department court filing, CIA Director George Tenet and National Security Adviser Condoleezza Rice met with Risen and Jill Abramson, then the Times’s Washington bureau chief. Tenet and Rice urged the Times to hold Risen’s story because, they said, it would “compromise national security” and endanger the life of a particular CIA recruit. (The agent is referred to in the Justice filing as “Human Asset No. 1.”) Eventually, the Times informed the CIA that it would not publish Risen’s story.1 Abramson said recently that she regrets the decision.
The following year, Risen and a colleague, Eric Lichtblau, learned of a National Security Agency surveillance program that collected details of Americans’ telephone and e-mail communications without reference to a search warrant. Some of Risen’s sources inside the NSA thought that the program was unconstitutional, because it violated the Fourth Amendment’s prohibition of unlawful search. Risen felt that he had come across “my biggest story of the post-9/11 age,” as he puts it in Pay Any Price, his revealing, diverse collection of investigations of greed, incompetence, and mendacity in the American national security state.
In October 2004, Risen and Lichtblau drafted their NSA story. They again informed the Bush administration of what they had discovered. The White House launched “an intense lobbying campaign” to persuade senior Times editors that the story “would severely damage national security,” Risen recalls. The decision about whether to publish fell to Bill Keller, then the Times’s executive editor. Risen, Lichtblau, and Rebecca Corbett, their editor, argued that the paper should go forward, but Keller ultimately decided against them. That left Risen, as he writes, “frustrated and deeply concerned.”
He then took a leave of absence from the newspaper to write a book. In the summer of 2005, he finished his manuscript. He included in it his reporting about the CIA’s Iran operation and, with Lichtblau’s consent, their discoveries about the NSA’s warrantless surveillance program. Risen found a willing publisher at Free Press. When he informed his editors at the Times about his book-publishing plans, he recalls, “They were furious.”
Rather than be scooped by their reporter and Free Press, the Times’s executives reconsidered their decision not to publish his story about the NSA’s warrantless surveillance. According to Risen, the deliberations culminated in an Oval Office meeting between President Bush and Arthur Sulzberger Jr., then and now the Times’s publisher. In December 2005 the Times printed Risen and Lichtblau’s account. It caused an immediate sensation and later won a Pulitzer Prize. Yet the Times did not reverse its decision to withhold Risen’s reporting about the CIA’s covert operation to undermine Iran’s nuclear program.
On January 5, 2006, Free Press brought out State of War, Risen’s first book, which contained, in Chapter Nine, a critical account of “Operation Merlin.” In this covert action of the Clinton administration, according to Risen, the CIA recruited a Russian scientist to provide flawed nuclear weapons designs to Iran, in hopes of delaying the country’s progress toward constructing a bomb. Instead, the scientist pointed out the design flaws to the Iranians, which may have helped them.
From this tangled history of investigative reporting and espionage has arisen one of the most consequential confrontations between the government and the press in a generation. The Obama administration inherited the case from the Bush administration. The Obama administration then pressured Risen aggressively to reveal the sources he relied upon in describing “Operation Merlin.” The result, as his book and other evidence make clear, was that the Justice Department’s actions damaged the First Amendment and the rights of journalists.
In mid-January, however, after several years of expensive litigation, the Justice Department reversed itself and conceded in federal court that Risen could avoid testifying about his confidential sources. Risen will not be going to prison. Justice’s concessions marked a significant advance for the cause of a freer press after many reversals during the Obama years. In this age of terrorism fears and digital surveillance, the protection of journalistic sources is becoming more difficult and more contested.
The story of how, exactly, the Obama administration went after Risen bears examination in some detail. After State of War came out, the Justice Department launched a grand jury investigation into how he had acquired his scoops. In 2010, a grand jury issued a ten-count indictment against Jeffrey Alexander Sterling, a former CIA operations officer who had left the agency in 2002. The indictment accused Sterling of violating the Espionage Act of 1917 by providing state secrets to Risen for his Iran chapter.
At the time, the Obama administration’s resort to the draconian provisions of the Espionage Act against Sterling was just one case in a series of overreaching prosecutions of journalistic sources carried out by Eric Holder’s Justice Department. In more than one instance, the Justice Department took positions that came close to criminalizing the act of professional reporting on classified subjects. In a pretrial filing in the Sterling matter, for example, prosecutors in the US Attorney’s office for the Eastern District of Virginia argued vehemently that Risen was an important eyewitness to a felony because the reporter had allegedly interviewed Sterling, who had given him classified information. Although the Justice Department did not indict Risen, this theory of the case cast his reporting as a form of co-conspiracy in a serious Espionage Act felony.
The Justice Department also took the position that it could not convict Sterling at trial unless Risen testified about whether Sterling had been his source. It was apparent that Risen knew Sterling; the reporter had published a profile of him in the Times, after Sterling quit the CIA. Prosecutors also submitted evidence that Sterling had telephoned Risen. Yet they insisted that only Risen’s courtroom testimony could win a conviction. For his part, Risen made clear that he would not testify about his sources under any circumstances, even if it meant that he would be held in contempt of court and jailed indefinitely.
The question of when a reporter may avoid testifying about sources or newsgathering is complicated. Forty states and the District of Columbia have enacted “shield laws” that define how and when a reporter can avoid testimony in cases that involve state law. (Another eight states have enacted the same sorts of protections through jurisprudence.) Generally, these shield laws ask judges to apply a balancing test to particular facts, weighing the unique value of a reporter’s information to the prosecution or defense against the need to protect a free press.
So far, however, there is no federal shield law. When, in the absence of a federal statute to rely upon, reporters have attempted to assert a privilege of protection under the First Amendment or common law, they have run into difficulty. The controlling Supreme Court case, Branzburg v. Hayes, which dates to 1972, is in some respects ambiguous, and appellate judges have interpreted its meanings variously over the years. In that case a reporter for the Louisville Courier-Journal refused to identify drug users he had referred to in a story. The split decision of the Supreme Court said that journalists had no special right to refuse to testify in such a criminal case.
Still, Justice Lewis F. Powell, in a concurring opinion, wrote about the “balance between freedom of the press” and citizens’ obligation to testify “with respect to criminal conduct.” He concluded that “the balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.” In criminal cases such as the one involving Risen and Sterling, however, Branzburg has never offered subpoenaed journalists reliable protection.
Risen’s lawyers initially prevailed, nonetheless. In 2011, District Judge Leonie Brinkema, of the Eastern District of Virginia, quashed the subpoena that had required him to testify. Her opinion offered an encouraging interpretation of Branzburg that would have strengthened the arguments of journalists challenging subpoenas in similar cases in other federal districts.2 The Obama administration might have let Brinkema’s ruling stand and backed away from pressuring Risen. Brinkema concluded that his testimony was not essential to the Justice Department’s case and prosecutors could have chosen to proceed to trial without his evidence or could have tried to negotiate a plea bargain with Sterling.
Instead, Justice appealed Brinkema’s ruling in Risen’s favor to the Fourth Circuit, seeking to eviscerate any notion that the Constitution or common law might offer him the qualified right to avoid testifying about his sources. The government won a reversal of Brinkema’s decision, with the court ruling two-to-one against Risen.
The only good that could be said to have come of the Obama administration’s decision-making is that the split appellate decision provoked a strong dissent by Fourth Circuit Appellate Judge Roger Gregory, who wrote in defense of the press’s role in strengthening public oversight of the national security state’s power, even when classified information is at issue. “The trial by press of secret government actions can expose misguided policies, poor planning, and worse,” Gregory wrote.3
As “the Obama administration continued the government’s legal campaign against me,” Risen writes in Pay Any Price, “I realized, in a very personal way, that the war on terror had become a bipartisan enterprise.” He therefore decided to fashion “my answer—both to the government’s long campaign against me and to this endless war”—in the form of a new book of investigative reporting about sensitive national security matters.
Pay Any Price is not a cohesive book, but it is a lively and important one. It is a portfolio of nine pieces of investigative journalism stitched together by polemical statements about the dangers and failures of America’s war on terrorism. Risen is a skilled investigator who draws on whistleblowers, civil litigation, government auditors, and other sources that provide openings into the workings of the country’s national security state. In the field of investigative journalism, his approach is sometimes referred to as “outside-in,” meaning that he does not rely primarily on access to powerful Washington officials in the know; he fights his way inside the classified bureaucracy, one auditor’s report or contractor lawsuit at a time. For this book, Risen has focused mainly on stories of profiteering, fraud, incompetence, and mendacity in the vast system of military and intelligence contracting that sprang up in and around Washington after September 11.
In an early chapter entitled “Pallets of Cash,” Risen presents a startling account of how a Texas lawyer and Republican loyalist named Stuart Bowen tried to find out what happened to the approximately $20 billion that the Bush administration sent into Iraq in the first year or so after the 2003 invasion. More than half of that sum was flown into Baghdad on cargo planes as bundles of hundred-dollar bills. (The rest went by banking transfers. Some of the funds belonged to the Iraqi state but had been frozen in Western banks because of sanctions imposed on Saddam Hussein’s government.)
The Bush administration’s controls were so weak that even today, despite Bowen’s persistent efforts, Risen writes, “at least $11.7 billion of the approximately $20 billion…is either unaccounted for or has simply disappeared” (his italics). Bowen traced about $1.5 billion in cash and $200 million in gold to Lebanon, where parties unknown apparently stored much of the loot in a secret bunker, where it reportedly remains. The waves of cash washing over Iraq during 2003 and 2004 tempted not only corrupt Iraqi ministers and generals, but American soldiers, officers, and contractors; Risen reports on the cases of several Americans employed by the US who tried to siphon small fortunes from the piles of money they were asked to handle in an atmosphere of chaos, confusion, and delusion among their superiors.
Risen also turns his auditor’s eye on KBR, the Houston-headquartered construction and services company that enjoyed, as he writes, “a virtual monopoly over basic services for American troops in Iraq.” When the Iraq War began, KBR was a subsidiary of Halliburton, where Vice President Dick Cheney had served as chief executive during the 1990s. The corporation’s profitable place in the invasion was so outsized that it seemed inspired by dark fantasies about the military-industrial complex. “At the height of the war,” Risen reports, “KBR had more than fifty thousand personnel and subcontractors working for it in Iraq, making the company’s presence…larger than that of the British Army.”
Risen concentrates his reporting on KBR’s operational failures. He describes how the corporation’s destruction of toxic waste in open burn pits endangered the health of American soldiers and Iraqi civilians. In a particularly enterprising report, he tells the story of Cheryl Harris, of suburban Pittsburgh, the mother of Army Staff Sergeant Ryan Maseth, a Green Beret. Maseth was electrocuted while taking a shower during his service in Iraq. The Pentagon told Harris that the accident was unavoidable; her refusal to accept that explanation, and her persistent digging into KBR’s operations, ultimately led the Defense Contract Management Agency to conclude that KBR had been in “serious contractual noncompliance” when it installed electricity in soldiers’ quarters.
Pay Any Price contains a disturbing, offhand disclosure about the author’s methodology. In a chapter recounting a tangled investigation of Nazem Houchaimi, a Palestinian with ties to the Pentagon, Risen begins with a vivid description of time he spent with Houchaimi in Jordan. He quotes verbatim their conversations as they ride around Amman in Houchaimi’s Audi. Later, however, Risen admits, “In an effort to get Houchaimi…to talk to me, I did not identify myself as a journalist or author; instead, I simply told [him] I was an investor interested in what they were doing.” Only afterward did he disclose that he was a journalist and seek comment.
In an earlier era, when the practices of newspapers like the Times and The Washington Post set an influential standard for journalism ethics, such undercover subterfuge by reporters was commonly prohibited by editors, and for good reason. Deceptions such as Risen’s rarely result in important journalistic insights in the public interest, and such dishonesty undermines the claims to professionalism that journalists rely upon while seeking shelter before courts under the First Amendment. Risen reported his story about Houchaimi at the very time that he stood at the center of one of the most important First Amendment struggles in years, arising from his previous book. It is to Risen’s credit that he discloses his ploy in Pay Any Price, but he and the cause he argued in the case of Jeffrey Sterling would have been better served if he had been straightforward with his sources and subjects throughout his reporting.
Toward the end of Pay Any Price, Risen gives revealing accounts of two of the most consequential aspects of American national security policy after September 11: the organized torture of al-Qaeda suspects in secret CIA prisons and the mass surveillance of communications by Americans carried out by the National Security Agency.
The story of how, in carrying out “enhanced interrogation techniques,” the CIA turned to James Mitchell and Bruce Jessen, two psychologists who had been trainers in the US Air Force’s program to prepare downed pilots for the possibility of capture and torture, has been told by other journalists, notably Katherine Eban and Jane Mayer. In December, the Senate Select Committee on Intelligence published a voluminous account of the CIA’s program, drawing on the agency’s own records. Risen has added a fresh element, however, by concentrating on the position of the American Psychological Association in supporting the psychologists who took part in the CIA’s program of torture. “Despite the professional consensus among psychologists that torture was counterproductive,” Risen writes, the American Psychological Association nonetheless “worked assiduously to protect the psychologists who did get involved in the torture program.”
The evidence Risen musters is characteristic of his admirably opportunistic investigative reporting. Through channels he does not describe, Risen obtained access to a cache of e-mails to and from Scott Gerwehr, a behavioral science researcher who had a Top Secret clearance and maintained ties to the CIA and the Pentagon. Gerwehr died in a motorcycle accident in 2008. By picking his way through the deceased researcher’s e-mails, Risen raises serious questions about the American Psychological Association’s position concerning the activities of the psychologists who worked with the CIA. In response to the publication of Pay Any Price, the organization commissioned an investigation of its role, to be carried out by David H. Hoffman, a Chicago lawyer.
On the subject of NSA surveillance, Risen narrates the dissenting campaign of Diane Roark, a former member of the House Intelligence Committee staff, who worked on oversight of the NSA. She concluded that the Bush administration’s surveillance practices were illegal and were likely to create trouble for her superiors, who had endorsed the program. Risen’s account of Roark’s efforts to warn them is, in a sense, a story of the First Amendment’s genius in conferring a specific freedom of the press. Her example illustrates how difficult it can be to call attention to failure inside the American national security state without talking to the press.
Roark warned congressional leaders with the appropriate clearances; she personally tried to persuade Michael Hayden, then the NSA’s director, that NSA surveillance practices were illegitimate; and she even tried to smuggle a letter to William Rehnquist, the Chief Justice of the Supreme Court. “Increasingly depressed,” Risen writes, “she realized that she was fighting the entire Washington power structure.” It is not clear whether Roark may have been a source at the time, but ultimately the Times, through Risen and Lichtblau, brought the subject to the public.
Since the scandals of the Nixon Administration, attorneys general appointed by presidents from both major parties have issued guidelines to federal prosecutors designed to limit their use of subpoenas against the press. In essence, the guidelines have instructed prosecutors to slow down and deliberate carefully before subpoenaing reporters and to do so only as a last resort. The rules give journalists the right to challenge any subpoenas in court before they are enforced, in all but the most rare circumstances. Obama’s attorney general, Eric Holder, oversaw a departure from these historical norms and practices, even apart from the Risen matter.
Most notoriously, the Department of Justice prosecuted and imprisoned about half a dozen press sources, besides Jeffrey Sterling, for disclosing classified information, including sources who had talked to journalists about such important matters of public interest as warrantless surveillance at the NSA and torture in CIA prisons. In the spring of 2013, it was also revealed that Justice, while investigating yet another leak case, had acquired extensive telephone records from Associated Press reporters and editors without informing the AP in advance. This overreach touched off a new storm of criticism. In response, Obama and Holder promised to review and reset their policies.
In July 2013, Holder issued new guidelines to prosecutors for cases involving the press. These contained improvements but also some worrisome language. For example, the guidelines suggested that prosecutors should respect the rights of reporters only when journalists were engaged in “ordinary” newsgathering, whatever that meant. (There had been no such qualifier in previous guidelines.) Last spring, apparently to deflect yet more criticism, Holder invited a group of journalists, as well as First Amendment advocates such as Bruce Brown, the director of the Reporters Committee for Freedom of the Press, to discuss the issues. I attended the meeting. The journalists pressed Holder several times about his pursuit of James Risen’s testimony. To us, and then later in public, Holder said, “As long as I’m attorney general, no reporter who is doing his job is going to go to jail.” In late September, however, Holder announced his resignation, upon confirmation of a successor, so it was unclear how significant a promise this would prove to be.
Meanwhile, in US v. Sterling, following the Fourth Circuit’s ruling against Risen’s assertion of a constitutional right not to testify about his sources, he appealed to the Supreme Court. Without comment or a hearing, the Court upheld the Fourth Circuit’s majority last summer. That decision confirmed yet more indelibly Branzburg’s unfavorable legacy, which may make it harder for journalists in the future to protect confidential sources. The Obama administration, by appealing Judge Brinkema’s quashing of Risen’s subpoena in the first place, bears partial responsibility for this outcome.
Last fall, Risen’s attorneys, Justice prosecutors, and Sterling’s defense lawyers entered into a protracted wrangle over how to resolve Risen’s role in the case. In January, this led to a peculiar hearing before Judge Brinkema at which Risen answered questions. The reporter clearly was unhappy to be in court and the essence of his testimony was that he would not say much, if called at Sterling’s trial. Afterward, on January 12, the court at long last effectively released the reporter from further involvement. Sterling’s trial is now underway in Virginia; the transcript from Risen’s fragmentary hearing can be used as testimony by both sides, if they wish, but the reporter will not appear.
Also in January, Holder issued new guidelines to prosecutors, dropping the qualifier about protection only for “ordinary” newsgathering and making other improvements. Yet even these better guidelines leave the Justice Department with enormous discretion when considering whether to force reporters to provide testimony or documents, especially in cases touching upon national security. The Risen case has certainly clarified the need for more explicit protections under federal law for reporters who enter into confidential agreements with their sources. But where will such protections come from now? It will require a Supreme Court of a different ideological makeup than the current one to undo Branzburg’s tangled and inadequate legacy.
For now, the only practical way to expand the protection of journalism would be for Congress to at last pass a federal shield law, comparable to the ones enacted by most states. Last September, the Senate Judiciary Committee passed, by a bipartisan margin of 13–5, such a proposed law. It died without a full Senate vote, another victim of Congress’s dysfunction and polarization.
In Pay Any Price, Risen shows through his portfolio of investigative stories how diverse are the Americans working in or around the national security state who are moved by conscience or grievance to dissent, and do so through cooperation with journalists. Risen’s work does not rely on a once-in-a-lifetime mega-source like Edward Snowden. It is constructed from dozens of much smaller, complicated narratives about frustrated insiders. Hardly any of them are motivated by political ideology; they are objecting to secret practices of the national security state that they regard as unjust or un-American.
“The rush to transform the United States from an open society to a walled fortress, prompted by the 9/11 attacks and propelled by billions of dollars spent on homeland security,” as Risen puts it, has left little room for serious public debate about “how best to balance security, civil liberties and freedom of movement. It is no longer much of a debate—security always wins.” Thanks to the risks taken by Risen and other journalists, we now know about sources and subjects that have helped to keep that debate alive. They have been willing, often at great expense to themselves, “to fight back,” as Risen puts it, “against the forces compelling us to accept smaller lives.”
The Quasi-Holy Secrets April 23, 2015
Unclassified version of Justice Department’s brief to the United States Court of Appeals for the Fourth Circuit in US v. Jeffrey Alexander Sterling and James Risen, 11-5028, January 13, 2012. ↩
“Memorandum Opinion,” US v. Sterling, July 29, 2011. ↩
United States Court of Appeals for the Fourth Circuit, US v. Sterling, July 19, 2013. ↩