Judge Slams Feds For Its Attempt To Punish Another Whistleblower

Free Speech

from the this-strategy-isn't-working-out-so-well dept

Part of President Obama’s campaign promise was more transparency and more encouragement of whistleblowing. And yet, as we’ve noted, he’s gone after more whistleblowers using the Espionage Act than all other former Presidents combined. However, Obama’s legal attacks on whistleblowers so far don’t have a very good track record. The attack on Thomas Drake — threatening him with the potential of 35 years in jail for complaining about waste and abuse in the NSA — fizzled. And now the latest attempt to put reporter James Risen in jail, unless he testified about his sources, has also failed.

A judge has quashed the subpoena by the government to force Risen to reveal his sources. The entire ruling by the court (issued last week, but made public this week) is worth reading as it goes through the full history and details of the case. But the key point is at the end, where the judge basically says that the government is pretty clearly just trying to harass a reporter for reporting on a secret government program. The government doesn’t need Risen to make its case, but it’s trying to compel him to reveal sources, knowing that this will scare some journalists from reporting but, more importantly, because it will scare off whistleblowers from going to reporters, if they could be compelled to reveal the sources. The judge isn’t buying the government’s argument:

Rather than explaining why the government’s need for Risen’s testimony outweighs the qualified reporter’s privilege, the government devotes most of its energy to arguing that the reporter’s privilege does not exist in criminal proceedings that are brought in good faith. Fourth Circuit precedent does not support that position. Moreover, the government has not summarized the extensive evidence that it already has collected through alternative means. Nor has the government established that Risen’s testimony is necessary or critical to proving Sterling’s guilt beyond a reasonable doubt. A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook. The government must establish that there is a compelling interest for the journalist’s testimony, and that there are no other means for obtaining the equivalent of that testimony.

It isn’t a complete victory, in that Risen still can be made to testify, but on very limited subjects that don’t break the reporter’s confidentiality with his source.

Of course, rather than stop harassing Risen, the government has already announced it intends to appeal. Pretty sad for a President who once said that whistleblowers are “often the best source of information about waste, fraud, and abuse in government,” to now support a campaign that is blatantly designed to scare off whistleblowing.

Filed Under: free speech, james risen, whistleblowing