In one of the most significant press freedom cases in decades, the U.S. Supreme Court has turned down the appeal of a New York Times reporter who faces prison for refusing to reveal a confidential source. James Risen had asked the court to overturn a ruling forcing him to testify in the criminal trial of ex-CIA analyst Jeffrey Sterling. Prosecutors believe Sterling gave Risen information on the CIA’s role in disrupting Iran’s nuclear program. Risen vowed to go to prison rather than testify and was hoping for Supreme Court intervention. But on Monday, the Supreme Court refused to weigh in, effectively siding with the government. The Obama administration must now decide if it will try to force Risen’s testimony and risk sending one of the nation’s most prominent national security journalists to jail. We are joined by two guests: Trevor Timm, executive director of the Freedom of the Press Foundation and a columnist at The Guardian, and Matthew Cooper, a veteran Washington correspondent who was held in contempt of court during the Bush administration leak case that led to the outing of Valerie Plame as a CIA agent.
This is a rush transcript. Copy may not be in its final form.
AARON MATÉ: We turn now to what could be one of the most significant press freedom cases in decades. The Supreme Court has turned down the appeal of a New York Times reporter who faces prison for refusing to reveal a confidential source. James Risen had asked the court to overturn a ruling forcing him to testify in the criminal trial of ex-CIA analyst Jeffrey Sterling. Prosecutors believe Sterling gave Risen information on the CIA’s role in disrupting Iran’s nuclear program. In his book, State of War, Risen showed that instead of hampering Iran’s efforts, the CIA effectively gave Iran a blueprint for designing a bomb. Risen vowed to go to prison rather than testify and was hoping for Supreme Court intervention. But on Monday, the Supreme Court refused to weigh in, effectively siding with the government. Risen said in response, quote, "I will continue to fight." He is no stranger to challenging the White House. In 2005, Risen helped expose the domestic warrantless spying program despite Bush administration efforts to kill the story.
AMY GOODMAN: The Obama administration must now decide if it will try to force Risen’s testimony and risk sending one of the nation’s most prominent national security journalists to jail. President Obama has already developed a reputation as the most aggressive in history when it comes to targeting whistleblowers. Obama’s Justice Department has brought eight cases so far, more than all previous administrations combined.
For more, we’re joined by two guests: Trevor Timm, co-founder and executive director of the Freedom of the Press Foundation, as well as Matthew Cooper, a reporter for Newsweek. He earned national attention when he refused to name his sources in his reporting on the outing of Valerie Plame as a CIA agent.
We turn now to Trevor Timm. Your response to the Supreme Court decision not to hear the case, Trevor?
TREVOR TIMM: Well, I think it’s been—it was really disappointing, on a number of levels. You know, this decision by the Fourth Circuit, before it even got to the Supreme Court, was one of the worst press freedom decisions in decades. You know, not only was the government arguing that James Risen didn’t qualify for reporter’s privilege, they argued that reporter’s privilege did not exist at all. And they even went as far to compare journalists protecting sources to journalists receiving drugs and refusing to testify about it. So it was really disturbing on a number of levels.
And the Supreme Court essentially sanctioned the Fourth Circuit ruling, meaning that in the Fourth Circuit, which is the home to countless national security sources and national security journalists, that reporters have much less protection than they’ve ever had to report on stories that, as we’ve seen over the past year, are really vital to the public interest. So, you know, hopefully, there are other avenues to continue to protect reporters’ rights and allow them to protect their sources. But this was definitely a setback.
AMY GOODMAN: Matt Cooper, your response to this Supreme Court decision?
MATTHEW COOPER: [inaudible] for transparency and whistleblowers and freedom of the press, and it shouldn’t have been brought in the first place. I am, frankly, relieved, though, that the Roberts court did not take this case, for I fear, had they taken it, they would have come up with a ruling that would have lasted for a generation that would have been much worse than the current state we have now. I don’t think there’s any sign that the court would have taken the case and delivered a resounding victory for the press and whistleblowers.
Now, I think, really, the only hope at this point—and there is a glimmer—is that Eric Holder’s Justice Department will refrain from prosecuting Jim Risen for contempt of court. The attorney general had a meeting with reporters last week, seemed to hint as much. And that’s about all Jim Risen can lean on at the moment.
AARON MATÉ: Well, let’s go to that quote from Eric Holder meeting last week with a group of journalists. He was asked about the James Risen’s case, and he told the reporters, quote, that he would not be—he suggested he would not prosecute Risen. Holder said, quote, "As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted." Trevor Timm, your response to what Holder said, and also to what Matthew Cooper has argued, that this non-ruling may be a good thing because a decision from the Supreme Court could have sided against press freedom?
TREVOR TIMM: Yeah, I think that was certainly a possibility, that if the Supreme Court took the case, then this could have been applied nationwide, and that certainly would have been a bad thing. But, you know, it’s hard to speculate one way or another. You know, all I know is that this ruling was terrible in the Fourth Circuit, and now that means that it’s going to stand.
But as far as Holder’s statement goes, you know, I think, on one hand, it’s good that he’s saying that as long as reporters are doing their job, they won’t face jail. But there was also a lot of wiggle room in his statement. You know, he talked about prosecuting journalists. And James Risen technically isn’t being prosecuted. He’s being asked to testify in somebody else’s prosecution and faces contempt of court if he doesn’t comply. And so, there is a way that Eric Holder can stay true to that statement and still have Risen go to jail. I’m hoping that he’s not trying to get off on that technicality and that he ultimately won’t send Jim Risen to jail if he decides not to testify.
But, you know, I think this goes to the point of—you know, the Justice Department is trying to decide what a reporter’s job is. You know, is news gathering, is protecting your source, a part of a reporter’s job? And obviously, all reporters would argue it is. But it seems by at least the Justice Department’s actions so far that they don’t believe the same thing.
AMY GOODMAN: Matt Cooper, your response to that?
MATTHEW COOPER: Well, this has been a thorny area for a long time, as Trevor knows. You know, in my case back in 2005, even a liberal justice on the D.C. Circuit, the nation’s second-highest court, said, while there may be a privilege for reporters to protect their sources, akin to a priest and a parishioner or a husband and a wife, I didn’t qualify for it. So, I think, realistically, in national security-related cases, we’re not likely to see the courts or even Congress carve out protections for reporters anytime soon. I wish they would, but I fear—I fear that’s not going to happen.
AARON MATÉ: Well, on the issue of a shield law, Congressmember Alan Grayson of Florida actually inserted some form of protection for journalists into a funding bill last week, I believe. Trevor Timm, your assessment of the prospects for a shield law coming from Congress? And your assessment of the legislation right now as it stands, whether it’s strong enough?
TREVOR TIMM: Well, the Alan Grayson amendment was actually very strong, and I was actually pleasantly surprised that it passed the House in an appropriations bill. It was a very short bill saying essentially the Justice Department couldn’t spend any money on subpoenaing journalists for confidential sources. Very cut and dry. Unfortunately, the shield law that the Senate is proposing is a much more complicated, much more watered-down version that has in the past had problems with the definition of "journalist" and, you know, deciding who gets protection and who doesn’t. Obviously, we don’t want Congress legislating who’s a journalist and who’s not a journalist. And then it also has this giant national security exception, that probably would have meant that James Risen, if it was applied to his case, would have had to have testified immediately. So there’s certainly a worry that this bill could end up backfiring. You know, if journalist organizations are supporting it, it could actually end up sanctioning more subpoenas, because they then lose the leverage they have and the ambiguity of the law and the fact that they are not actually complying with any of these subpoenas and are protesting loudly. So, I’m definitely pessimistic on the shield bill, as Matthew is as well.
AMY GOODMAN: And, Matthew Cooper, very quickly, what happens next, now that the Supreme Court has turned down the case of James Risen?
MATTHEW COOPER: Well, I think it will be the same as in my case, which is it goes back to the original district court, where—that heard the case and ruled against him, and the prosecutor will then have to ask for some kind of penalty for Risen not appearing. And that will be the big question. Will he say, like, "Well, let’s just hold off, and we’ll hold on and not do anything," in which case Risen won’t go to jail—
AMY GOODMAN: We’re going to have to leave it there. Matthew Cooper and Trevor Timm, thanks so much for joining us.