Jail the Journalists!

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.