Why locking up leakers makes sense
The Economist, Jan 29th 2015
In January of this year, a US District court convicted Jeffrey Sterling of leaking classified documents about a covert CIA plot. The operation, which consisted of using proxies to pass faulty nuclear technology to Iran, was revealed in a book published by New York Times journalist James Risen. In the prosecution, the government had subpoenaed Risen to testify about his involvement with the leaked documents. However, Risen refused to disclose his source, citing his promise of anonymity to his contact.
In previous cases, courts had attempted to force journalists to reveal their sources, such as when Judith Miller spent 85 days in jail in 2005 for refusing to divulge the information. Primarily, Risen had objected to testifying, claiming that the freedom of the press protected journalists from testifying in such cases. However, this was not upheld; the Supreme Court found last year that the constitution provided no special protection for reporters.
Nevertheless, the government decided not to use this ability, with Eric Holder, Attorney General at the time, stating: “no reporter who is doing his job is going to go to jail.” He refused to allow prosecutors to make Risen reveal his source, thus removing the testimony of the only direct link at the trial. Despite this, they were able to make a case against Sterling, leading to his conviction on circumstantial evidence by linking him to interaction with Risen. He could potentially face decades in prison.
This episode could set a crucial precedent for the prosecution of leakers of classified information, and journalistic protections of reporting on the information. Journalists will be encouraged that the government will uphold the rights of reporters to have confidential sources, allowing them to publish information without compromising their journalistic integrity. Potential leakers may also feel safer in the knowledge that their reporters will not be forced to reveal them. However, the leakers may also worry that circumstantial evidence will be used against them, specifically their links to the reporter breaking the story, as was the case with Sterling and Risen. In future, leakers will be wary of evidence linking them with the reporters.
The case brings to light the manner in which the judicial system can influence the government's policy when it comes to national security issues, as we have seen in many previous cases. Here, in balancing the freedom of the press with national security issues, the government has sent a clear message that upholding that freedom is a priority. This is crucial in the oversight of government action, in which the press plays a key role. However, the government made clear that leaking sensitive information would not go unpunished. The precedent set, therefore, is optimistic for press oversight of government, but less rosy for those who divulge secret information that allows this oversight.
One aspect of the case to note is that, in contrast to many of our previous cases, the prosecution has set the precedent, rather than the court. Even though the Supreme Court ruling allowed them to do so, the prosecution decided not to force Risen to testify, hopefully setting an example for the future. However, since the courts have given the government the power to force journalists to testify, it may not be long before they use this power, reversing what we saw in this case. The freedom of the press to withhold their sources may not be protected as well as they hope.