Chilling the First Amendment

President Obama has overseen an unprecedented legal campaign against leaks of classified information with New York Times journalist James Risen now facing possible jail for refusing to testify in the trial of ex-CIA officer Jeffrey Sterling for a leak published in Risen’s book, State of War, a topic that First Amendment attorney James Goodale discusses with Dennis J Bernstein.

By Dennis J Bernstein

Federal prosecutors are seeking to compel New York Times reporter and author James Risen to testify at the trial of Jeffrey Sterling, a former CIA officer charged with leaking information about a flawed CIA operation to sabotage Iran’s nuclear program that Risen reported extensively on.

On July 19, the Fourth Circuit Court of Appeals ruled in favor of the Obama administration that Risen must testify at Sterling’s trial, just the latest case of cracking down on leakers and journalists who publish classified information.

James Goodale, a prominent First Amendment lawyer, calls the administration’s campaign against leaks a threat to the ability of reporters to do their jobs. Goodale represented the New York Times in the landmark 1971 Pentagon Papers case, when the Nixon Administration tried to stop the Times from publishing the top secret documents.

Goodale is the author of a new book, Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles, and sees parallels between the Pentagon Papers case and current efforts to prosecute Sterling, Bradley Manning and Edward Snowden. He was interviewed by Dennis J Bernstein on Pacifica’s Flashpoints.

DB: Welcome Mr. Goodale, it’s really good to have you. I don’t think you could have picked a better time to write this book. And I understand you had some very specific reasons why you wanted to get this information out and posthaste. Could you give us the background?

JG: I wrote this book really as a clarion call to your listeners, to yourself, to journalists to wake up to President Obama and what he had in mind for the press, so that we would be prepared to deal with it.   We’re in a crisis right now, I would think. In this country, we’re all concerned about national security, and what should be done to people who leak.

And my book is about one of the greatest leaks of all time. I was prompted particularly to do the book, not only by the clarion call to Obama but also by the fact that WikiLeaks had, in effect, created a leak comparable to the Pentagon Papers. So that’s the background. We’ve got two great leak stories going on now, one that went on many years ago and we have a president who is very concerned about national security, as indeed President Nixon was, at the time of the Pentagon Papers. So there’s a lot going on that has familiar rings to it.

DB: You write … and I want to ask you straight up. You say “Obama is worse for the press and press freedom than former President Richard Nixon was.” Is that hyperbole or is that your case?

JG: Well, what I say is if President Obama goes forward, and he tries to prosecute WikiLeaks, and he tries to do it on a conspiracy theory and he succeeds, he will be worse than Nixon. Because Nixon tried to do the same thing against the New York Times, many years ago. People have forgotten what Nixon tried to do. But he tried to prosecute the Times for the publication of the Pentagon Papers, and he gave up. He failed. So I say, if President Obama could come around and do the same thing to WikiLeaks, that Nixon couldn’t do to the New York Times, he will have topped, he will have topped Nixon.

DB: How would you describe Obama’s approach to classified information and press freedom?

JG: Well, listen, I’m an Obama supporter. I’m a former member of the Rules Committee of the Democratic Party. But I have to tell you Obama’s approach to press freedom, and national security, from my viewpoint is very, very poor. He chasing reporters, he’s chasing leaks. I just don’t think he’s done a very good job about it. And I prove my case a little bit, by the case that came out Friday where he has chased James Risen, a former New York Times reporter, for not disclosing a source of a leak. [Risen] wrote about that leak in a book and that case, which was all over the papers on Saturday morning, is a very, very bad case. It proves to me that Obama is chasing the press unnecessarily. And I could go on and on.  I’ve got a pretty good argument here because I predicted this actually, when my book came out on April 1st of this year that he would end up trying to put Risen in jail, etc., etc. …

DB: Would you just take a moment to remind people what the so-called justification … what happened here because I don’t [think] people understand the details.

JG: Alright, so on Saturday morning if you picked up the front page of the New York Times or you listened to the radio you may have heard that James Risen, a New York Times reporter, had been ordered by an appellate court to disclose his source. His source was … set out in the book Risen had written and the information in question concerned Iran’s nuclear program.

Everyone knows his source was a gentleman named Sterling and what Sterling did, apparently, was he told Risen that the Iran nuclear program was screwed up by some activities by the CIA. Risen put that in his book. He was asked to confirm that the source of his story was the aforementioned Sterling. He refused to do it. So he said he’s not gonna ever disclose it, he’s gonna go to jail. And the court of appeals in Virginia said “No, the government is right. Risen you were wrong.” And it looks like Risen is going to go to jail. That’s what that story is about.

DB: Alright. Now put that in context, and your concern about where this is going.

JG: Well, my concern is that Obama, to put it in simple terms, is leak crazy. He has indicted six people for leaking. That’s twice as many who have been indicted in the whole history of the United States. Three was the record before that. And he is over concerned about leaks, and as a consequence he’s ending up wanting to put reporters in jail. And that’s not very good for press freedom, obviously.

DB: I guess you could say that it raises some challenges and some real concerns about where press freedom is going, and what we all have the right to do now who consider ourselves journalists.

JG: Yes, I think journalists should be very, very concerned. He, Obama, has also threatened to prosecute Julian Assange. Now Julian Assange ran the web site WikiLeaks. And he, Julian Assange, is in England. He’s holed up in the Ecuadorian embassy. He is scared to come back to the United States because he thinks that Obama will indict him. Now, Julian Assange may not be an attractive figure to your listeners, but he is someone who published leaks, that’s what Risen did, he published them on his web site and he should be able to do that under the First Amendment, without fear of prosecution. But Obama seems to be going forward with that prosecution. The list goes on and on. But I just do not think that Obama is very good on press freedom.

DB: We’re speaking with James Goodale. He’s got a new book, it’s called Fighting for the Press. He was the chief counsel to the New York Times when its editors published the Pentagon Papers in 1971. You know, in 1971, and for a long time after, I know as a daily journalist, I would die for the kinds of documentation that was provided by Julian Assange.

I mean this was what journalists look for, to document, instead of just somebody just saying here or there, you get the document. You can see … what the policy was. …It almost seems like journalists have … turned on themselves, and feel like it’s their job to prosecute the whistle blowers … and the journalists like Glenn Grenwald who give them a platform. Where are we here?

JB: Well, I think that there’s a couple of points here that you made that I want to emphasize. And number one, I’ve talked about journalists who publish information. But we gotta realize that in many cases that information is what we call whistleblower information. It’s information that a particular person feels compelled to bring to the attention of the United States public. And the journalist believes that carrying that information to the public is carrying out his obligations as a journalist. That’s the first point you made, which I want to emphasize.

The second point is that the journalistic community does not seem to be as enthusiastic as I am about supporting these whistleblowers. Now, in the case of Glenn Greenwald, he is a blogger. He’s pretty much the same as Julian Assange. He’s got his own web site, so to speak. He has published the information about the NSA program, which has been in the headlines over the last several weeks.

But I think your point is, and I would agree with it, not everybody is rushing to support Glenn Greenwald. Some people have said he should be prosecuted himself. But Glenn Greenwald is just like you. You are interviewing me, Glenn Greenwald interviewed the person who leaked the information about the NSA. And I really think the journalistic community should support the Glenn Greenwalds of the world and tell President Obama that he’s not going to be able to scare journalists.

DB: How would you … somebody who represented the New York Times in the Pentagon Papers in ’71, how would you compare WikiLeaks … what Assange has done to what happened with the Pentagon Papers? Is there a parallel there?

JG: Well, I think that there is a parallel. … They are the two great leaks in American history. The Pentagon Papers, to refresh the recollection of your audience, was a 47-volume study of the history of the Vietnam War. And Daniel Ellsberg leaked all the volumes to the New York Timers. The New York Times didn’t publish them all, but part of it.

In the case of Julian Assange, Private First Class Manning, who had access to classified information, leaked tons and tons of material to Assange. Part of that material was published first by the New York Times, and then later it was published by Assange. So, we’re looking at two great leaks, by two well known leakers, one better known than the other, Ellsberg the great leaker, leakee, the New York Times, and Private Manning not as well known as Ellsberg. But he’s a leaker, and he leaked it to Assange. So Assange is the same as the New York Times, so forth, and so on. So, generally speaking, they are identical.

DB:  Amazing. Well, we don’t have a ton of time left, but I guess if I could appoint you as a special advisor to the President for legal affairs what would you want to tell him about his policies that have to do with going after [leakers]. Bradley Manning should spend the rest of his life in jail and some people around Washington feel he should be executed as a traitor? What would your advice be to the President?

JG: My advice to President Obama is very simple. Dial it back. Manning is a leaker, he’s pleaded guilty to 20 years, he should go away for 20 years, but he doesn’t need to go away for life. So tell your prosecutors to dial it back. And in the case with James Risen, Mr. President, you do not want to put a New York Times reporter in jail, dial it back.

DB: This is a speculative question. You’re an attorney, but what do you think the New York Times would do if somebody put an equivalent version of the Pentagon Papers in their editor’s hands today? Would they have the courage? Would they be risking their freedom, being closed down? What do you think? What would you tell them?

JG: Well, I think that the courage is out there. I mean, Risen is a New York Times reporter after all. He courageously went forward with the leak that he published. I think, to answer your question, the New York Times would go forward with the publication of its leak. But I think what’s changed over the intervening time between the first publication of the Pentagon Papers and today, is that the screw has been tightened on the press. And that the risks to reporters particularly has increased. So, to the extent that the information that you talked about came from a source that had to be protected, I think reporters are going to be a lot more scared today than they were X years ago, particularly after the Risen case, and decision, which we talked about earlier.

DB: So you’re expecting the big chill? You’re expecting a big chill. You think this is going to chill the willingness of some reporters to … if you have three kids…

JG: Yeah, I usually stay away from the word chill, I don’t like to use it loosely. But I think it’s quite clear that what all of these actions have done is that the reporters who would be Risens, who would be getting leaks of information which the public should know about, they’re not that eager to risk their freedom and, secondly, I do not think the reporters that used to go that game, are going into it. So I will use the word chill to sum up that point to say that we’re going to get less and less reporting about things we should know about because reporters are going to be scared.

Dennis J Bernstein is a host of “Flashpoints” on the Pacifica radio network and the author of Special Ed: Voices from a Hidden Classroom. You can access the audio archives at www.flashpoints.net.