Jan 182014

Should reporter James Risen have to testify in the government’s criminal case against former CIA agent Jeffrey Sterling? Law professor Eric Posner thinks that he should.

Sterling is accused of leaking confidential information about a botched CIA plot to sabotage an Iranian nuclear reactor, and is suspected of being a source for a chapter in Risen’s book. If the government can compel Risen to testify that Sterling was his source, Sterling will almost certainly be convicted, and reporters like Risen will almost certainly find fewer people willing to talk to them about confidential information. This is one reason why Risen is so reluctant to testify — his work as an investigative reporter depends heavily on his promise to sources that he won’t reveal their identities. Risen is arguing that the Supreme Court should create a privilege for reporters from testifying in criminal cases about the identity of their sources.

Eric Posner thinks Risen should lose that argument. Posner describes a world of deeply untrustworthy journalists and governments beleaguered with leaks. He concludes that in this world it makes no sense to hobble government prosecutions of dastardly leakers with grants of privilege to scurrilous reporters who want to indiscriminately disclose even the most valuable of secret programs. Although Posner does acknowledge that “a balance must be struck” between government secrecy and the need to inform the public of government wrongdoing, he seems convinced that rules favoring the work of investigative reporters will strike the wrong balance.

I must confess that I don’t recognize the world Posner apparently thinks we’re living in.

In the world I’m living in, the government has cloaked in secrecy far too much of what it does. If it has a problem with leaks, this is almost entirely the result of trying to keep secret wide-ranging programs that demand public discussion and consent if we are going to pretend that we live in a representative democracy. This includes the NSA bulk surveillance programs revealed by Edward Snowden; it includes the Iraq and Afghanistan war logs revealed by Chelsea Manning.  These leaks may be a problem for a government prone to excessive secrecy. They are the opposite for the health of our republic.

In the world I’m living in, journalists may indeed have failed to earn our trust, but not by indiscriminately disclosing valuable secret government programs, but by uncritically repeating what they’re told by government officials. I would call Posner’s attention back to the buildup to the Iraq war when journalists routinely repeated official claims that turned out to be untrue and deeply misleading. For me, any bad reputation journalists may have earned is the result of their failing to do their job and acting as stenographers and propagandists for the government.

With these background perceptions about the world we’re living in, I read Posner’s arguments and reject (almost) all of them. It may still be true that Risen ought not to have any privilege from testifying, but only if we actually do what Posner suggests as an alternative to excessive secrecy (but that I suspect he won’t be vigorously arguing for as soon as the Supreme Court declines Risen’s request).

Posner argues that because the act of disclosing classified information is a crime, it makes no sense to allow journalists who receive the leaked information to refuse to testify in prosecutions of these crimes. Worse, Posner seems to argue that we ought to be thankful that the government has chosen not to prosecute journalists for aiding and abetting these crimes.

I’d be happy to agree if only we lived in a world where journalism and leaking classified information were the same act (which they aren’t), or if we lived in a nation whose legal, political, and cultural traditions did not recognize the value of a free press (which they do), or if the idea of limits on the ability of the government to prosecute crimes was an alien concept (it isn’t), or if the only way to protect ourselves from terrorism was to live in a police state (it’s not).

Posner tries to persuade us that the press has “not earned our trust” by pointing to episodes of the press publishing information that the government wanted withheld (a 2005 article about the NSA, and a 2006 article about a Treasury Department program to monitor international monetary transfers). But this supports Posner’s argument only if one shares Posner’s worldview, and believes as Posner appears to believe based on his arguments in this article that the government should be the final arbiter of what gets published and what doesn’t. Posner says nothing about how or whether those disclosures were actually harmful, but I wish he would. Otherwise his examples just show that we still have an independent press in this country that — sometimes — doesn’t do what the government wants it to do. I remain thankful for that.

I suppose Posner might want to say that these leaks revealed no government wrongdoing, and that therefore they were leaks “that ought to be plugged.” But  it is far from clear that the programs Posner refers to revealed no wrongdoing. Furthermore, excessive classification and secrecy, even of activities that do not obviously violate the law, can themselves constitute “wrongdoing” when they become as ubiquitous as our government’s national-security obsessed programs have become.

Posner writes: “Leaking has also become such a problem because the government needs a vast unwieldy bureaucracy to supply the level of protection from terrorism that the public demands.” I will only say that invoking “public demand” as a justification for keeping secrets from the public might not be the most effective way of defending secrecy. How do we know that the public “demands” protection that they aren’t permitted to know about?

Posner does make one decent argument at the end of his post:

A reporter’s privilege that makes it harder for the government to prevent leaks just means that the government will redouble the screening, training, and monitoring. If it succeeds, we’ll have as little of the “free flow of newsworthy information” as we ever did, except at much greater cost to the taxpayer with ever more complicated, redundant, and awkward bureaucratic controls

He suggests instead a rule that leakers ought to be allowed to defend themselves by showing that they acted in the public interest by disclosing “grave wrongdoing.” Posner here acknowledges that “a balance must be struck” between the government’s need to keep some secrets and the public’s need for protection from government wrongdoing enabled by excessive secrecy. I agree. But the problem is that now we have neither the rule Posner suggests nor the reporter’s privilege that Posner dislikes. Right now, the balance between government secrecy and government accountability is tilted too far toward secrecy.

In this world, I think the reporter’s privilege Risen is seeking would improve the status quo.