Crackdown

On a January morning this year, James Risen wrapped his navy wool coat tight against the cold as he walked into the front entrance of the federal courthouse in Alexandria, Virginia. He had fought for more than seven years, and all the way to the Supreme Court, to avoid this moment. Now that the day had come, he was in fact early and sat alone on a bench in the vast hallway outside U.S. district-court judge Leonie Brinkema’s courtroom. His lawyer Joel Kurtzberg ushered him inside.

A pre-trial hearing in the matter of United States of America v. Jeffrey Alexander Sterling was now in session. Noting that the government had subpoenaed Risen, Judge Brinkema asked him to take the stand shortly before 11 o’clock. He did so, sitting with an expression somewhere between hostility and boredom, his gaze fixed in front of him. The person nearest to Risen, other than the bailiff, was the defendant, Jeffrey Sterling, a former C.I.A. agent who faced 10 felony counts, including 7 under the Espionage Act, for allegedly leaking confidential secrets to Risen for his 2006 book, State of War.

Sterling’s case had been on hold for years, awaiting Risen’s testimony—which Risen, a New York Times reporter, had fought to withhold, potentially on pain of imprisonment. The prosecutors thought they had won their battle after the Supreme Court, in June 2014, declined to consider Risen’s appeal. But just weeks before this pre-trial hearing, they had seemingly been undercut by their boss, U.S. attorney general Eric Holder, who did not authorize them to ask Risen to identify confidential sources—a move that may not have been as conciliatory as it appears.

But Assistant U.S. Attorney James Trump and the prosecution still wanted Risen to confirm some basic facts—facts they could methodically combine with other facts into a compelling circumstantial case. Trump asked Risen to confirm that he was the author of his own book, as well as of several articles that bore his byline. Risen responded with barely disguised disdain. Trump then asked Risen if he had any confidentiality agreements with his sources for a key chapter in State of War. Risen carefully repeated—nearly verbatim—what he had written in a 2011 affidavit, which was that he had used both identified sources and confidential sources for his reporting, period. Trump asked the question again, and Risen gave the same reply. After two more rounds of this, Trump allowed a long pause, and then testily asked, “Do you understand the question I’m asking you, sir?” Risen replied, “I do.” Then he repeated his answer. Judge Brinkema broke in and told Risen, “It’s a simple question”—either he had confidentiality agreements with his sources or he didn’t. Risen didn’t budge. “That’s not my interpretation of the question,” he said. “I don’t want to provide information to help the government create a mosaic to establish certain facts in this case.”

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In narrow terms, the trial centered on Sterling. But Risen regards the government’s pursuit of his own testimony as punishment for his coverage of policies that have defined the country since the September 11 terrorist attacks. Risen has much journalistic company. In recent years, the news pages have not been filled with stories about prison time for the architects of the 2008 financial meltdown. But journalists as a group have been pursued as never before. The track record of the Obama administration—which has invoked the rarely utilized 1917 Espionage Act, enacted during World War I to deal with spies, to prosecute current and former government employees for sharing information with the press—is a surprising one for a team that in its early days promised increased openness and stronger protections for whistle-blowers.

Former C.I.A. officer Jeffrey Sterling after his conviction, in January. By Kevin Wolf/A.P. Images

In May 2013, Obama’s Justice Department informed the Associated Press that it had, over a period of two months, seized records for more than 20 phone lines associated with the agency’s staff. Soon after, it seized phone records and e-mails between a Fox News reporter and a State Department contractor. It has investigated the relationship between multiple New York Times and Washington Post reporters and their government sources. President Obama said that he was “troubled” by the impact his administration’s leak prosecutions could have on the press, and in response the Justice Department recently revised its policies on how it obtains information from reporters. The revisions raise the bar that investigators must clear to seize a journalist’s records in some cases. But there are gaping loopholes that leave journalists and their sources vulnerable. Meanwhile, the leak investigations continue across the country. In late 2014, Eric Holder, the outgoing U.S. attorney general, signed off on a subpoena request for a 60 Minutes producer, only to pull back upon learning that the producer planned to resist.