When thinking of journalists heading to jail for reporting on government misdeeds, countries that might come to mind might include Iran, Turkey, Russia and China.  We might be adding the US to that list as a Supreme Court decision may place New York Times reporter James Risen in prison for not revealing a source.

New York Times Reporter James Risen

New York Times reporter faces prison time for withholding source identification

At issue is a chapter in his 2006 book “State of War: The Secret History of the CIA and the Bush Administration” where a CIA source disclosed a wild conspiracy caper in Iran. Prosecutors are seeking Risen’s testimony to help convict Jeffrey Sterling, a former Central Intelligence Agency official who is suspected of providing Risen information about the classified CIA operation..

Sterling is accused by the government of providing Risen information about a CIA plan to sabotage Iranian nuclear research, called Operation Merlin. The scheme, detailed in chapter 6, had a Russian scientist selling inaccurate blueprints to the Islamic state.

In May of 2011 the government delivered a subpoena to New York Times reporter Risen for his testimony against Sterling, taking him to court to force the issue.  Risen’s case was before the US Supreme Court, which simply issued a one line sentence saying that it would not hear an appeal of a lower court’s ruling against Risen. The US Court of Appeals for the Fourth Circuit in Richmond, VA had ordered Risen to comply to a government subpoena to provide information on his sources. At the time Risen had said he would refuse, according to a New York Times report on the issue.

Obama administration reaction

Speculation has centered on the Obama administration’s reaction to the case. Last week when US Attorney General Eric Holder was asked about the case, he said “As long as I am attorney general, no reporter is going to go to jail for doing their job.”  The New York Times had speculated that the Justice Department might not ask the trial judge to jail Risen if he should continue to refuse to provide testimony.

The Obama administration has had a back and forth attitude on the issue of press freedom, sending mixed signals. After pledging to be “the most transparent administration in history,” the administration is ironically being considered as the most aggressive at punishing government whistleblowers. In arguing before the Supreme Court they were stern, saying that “reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by confidential sources.”

The report noted the Supreme Court has not specifically addressed protections journalists and their sources may enjoy.  In a 1972 ruling, Branzburb v. Hayes, the court ruled 5-4 that the First Amendment did not provide journalists protection from grand jury subpoenas. Media lawyers have advocated a broader interpretation of the issue.