The subpoena to Risen was originally issued but then abandoned by the Bush administration, and then revitalized by Obama lawyers. It is part of the prosecution of Jeffrey Sterling, a former CIA agent whom the DOJ accuses of leaking to Risen the story of a severely botched agency plot — from 11 years ago — to infiltrate Iran’s nuclear program, a story Risen wrote about six years after the fact in his 2006 best-selling book, State of War. The DOJ wants to force Risen to testify under oath about whether Sterling was his source.
Like any good reporter would, Risen is categorically refusing to testify and, if it comes to that (meaning if the court orders him to testify), he appears prepared to go to prison in defense of press freedoms and to protect his source (just as some young WikiLeaks supporters are courageously prepared to do rather than cooperate with the Obama DOJ’s repellent persecution of the whistleblowing site). Yesterday, Risen filed a Motion asking the Court to quash the government’s subpoena on the ground that it violates the First Amendment’s free press guarantee, and as part of the Motion, filed a lengthy Affidavit that is amazing in several respects.
During the Bush years, Risen was one of the few investigative journalists exposing the excesses and lawbreaking that was the War on Terror — causing him to be literally hated by officials of the National Security State. Along with Eric Lichtblau, Risen most famously revealed, in 2005, that the NSA was secretly spying on Americans without warrants which — as he put it in his Affidavit — “in all likelihood, violated the law and the United States Constitution.” In 2006, he revealed that the Bush administration had been obtaining huge amounts of financial and banking information about American citizens from the SWIFT system, all without oversight or Congressional authorization. And here’s how he summarized the multiple revelations in State of War, the book for which the Obama DOJ is now seeking to force him to reveal his source upon pain of imprisonment:
State of War included explosive revelations about a series of illegal or potentially illegal actions taken by President Bush, including the domestic wiretapping program. It also disclosed how President Bush secretly pressured the CIA to use torture on detainees in secret prisons around the world; how the White House and CIA leadership ignored information before the 2003 invasion of Iraq that showed that Iraq did not have weapons of mass destruction; documented how, in the aftermath of the invasion, the Bush Administration punished CIA professionals who warned that the war in Iraq was going badly; showed how the Bush Administration turned a blind eye to Saudi involvement in terrorism; and revealed that the CIA’s intelligence operations on weapons of mass destruction in Iraq, Iran and other countries were completely dysfunctional, and even reckless.
(To understand the function of the American media and American political culture: please re-read that paragraph — describing revelations of pervasive lawbreaking and corruption at the highest levels of government from one reporter in one book — and compare the media’s indifferent and/or supportive treatment of that revealed conduct to the orgy of intense, obsessive condemnation directed at Anthony Weiner; or compare how the perpetrators of that conduct revealed by Risen are treated with great respect to the universal scorn heaped on Weiner).
Particularly because of the NSA revelation, Risen was despised by Bush officials and was the target of a right-wing hate campaign (including suggestions — from administration officials and prominent others — that he be prosecuted for espionage). Risen compiles ample evidence in his Affidavit to argue that the Subpoena issued to him in the Sterling case was a by-product of the administration’s efforts to harm him; he writes: “the administration was embarrassed by the disclosures I made in the course of my reporting for State of War as well as in The New York Times, and eventually singled me out as a target for political harassment.” Indeed, Risen argues — persuasively — that the investigation to unmask his source, and the prosecution of Sterling itself, is little more than a means of punishing him for his reporting and for intimidating similar disclosures in the future:
I believe that the investigation that led to this prosecution started because of my reporting on the National Security Agency’s warrantless wiretapping program. The Bush White House was furious over that story. I believe that this investigation started as part of an effort by the Bush Administration to punish me and silence me, following the publication of the NSA wiretapping story. I was told by a reliable source that Vice President Dick Cheney pressured the Justice Department to personally target me because he was unhappy with my reporting and wanted to see me in jail.
As it has in so many other instances, the Obama administration appears on the verge of fulfilling Dick Cheney’s nefarious wish beyond what even Cheney could achieve.
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There are two aspects to Risen’s Affidavit which merit particular attention. First, Risen cites a 2006 ABC News report from Brian Ross and others that claimed the Bush administration was, without warrants, spying on the communications of reporters (including Ross) in order to discover the identity of their sources. I personally never attached much credence to that story because of how unreliable I find Brian Ross to be, but in his Affidavit, Risen states (under oath) that he “has reason to believe that the story . . . is true” because he “learned from an individual who testified before a grand jury in this District that was examining my reporting about the domestic wiretapping program that the Government had shown this individual copies of telephone records relating to calls made to and from me.”
The fact that Bush officials were spying on reporters is extraordinary. Instead of pursuing Cheneyite vendettas by persecuting whistleblowers who exposed newsworthy ineptitude from long-irrelevant CIA plots, the Obama DOJ ought to be investigating that allegation; that it isn’t and wouldn’t speaks volumes.
Second, Risen links the Obama administration’s pursuit of the Sterling case and of Risen to the current President’s broader (and unprecedented) war on whistleblowers and investigative journalism. He writes:
[I believe that the efforts to target me have continued under the Obama Administration, which has been aggressively investigating whistleblowers and reporters in a way that will have a chilling effect on the freedom of the press in the United States.]
What’s particularly striking about this prosecution is that it involves digging deep into the ancient past (the Iran operation in question was begun under the Clinton administration): this from a President who insisted that Bush officials not be investigated for their crimes on the ground that we must “Look Forward, Not Backward.” But it’s not hard to see why Obama officials are so intent on doing so: few things are more effective in creating a Climate of Fear — one that deters investigation and disclosure and stifles the exercise of basic rights — than prosecuting prominent people for having challenged and undermined the government’s agenda. As Risen documents, that — plainly — is what this prosecution and the Obama administration’s broader anti-whistleblower war is about: chilling the exercise of basic rights and the ability to challenge government actions.
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While there is no good faith claim that Risen’s revelation six years after the fact harmed U.S. national security, Risen’s story was unquestionably newsworthy because it revealed how inept and ignorant American intelligence agencies are when it comes to Iran. Indeed, Risen claims vindication for his story “given subsequent reports about the unreliability of our intelligence about Iran’s nuclear capabilities and about our government’s tendency to overstate the threat in a way that is not entirely consistent with the intelligence actually gathered.”
That Iran is developing nuclear weapons is one of the Obama administration’s most cherished orthodoxies. Anything that challenges that is attacked. Recall how cowardly Obama officials ran to Politico to anonymously malign Seymour Hersh’s recent New Yorker piece arguing that there is little credible evidence of Iran’s nuclear activities. As Risen says: ”Whether one agrees with Mr. Hersh’s article or not, it is clear that, five years after I wrote State of War, there is still a serious national debate about Iran’s nuclear ambitions and about whether the current administration has incentives to exaggerate intelligence related to this topic.”
What the Obama administration is doing, above all else, is bolstering the Climate of Fear that prevents any challenges to its pronouncements of this sort. I wrote about that joint White-House/Politico attack on Hersh to mock the gross hypocrisy of criticizing Hersh for his use of anonymous sources in the very same article where Politico granted anonymity to Obama officials to attack him; but the more substantive point is that of course Hersh has to use anonymous sources. In the Climate of Fear being deliberately fortified by the Obama administration, what person in their right mind would openly challenge their national security decrees on classified matters or call their veracity into question? As the Sterling/Risen case and numerous others have intentionally conveyed: imprisonment is the likely outcome for those who do that.
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This Climate of Fear is being strengthened by more than just whistleblowing prosecutions and the targeting of journalists. So many Obama policies are devoted to its fortification.
Today in The New York Times, former NYT reporter David Shipler chronicles the multiple ways the current President, in conjunction with Congress and the Supreme Court, have intensified the decades-long assault on the Fourth Amendment’s guarantee against unreasonable searches and seizures: “The Obama administration petitioned the Supreme Court to allow GPS tracking of vehicles without judicial permission. The Supreme Court ruled that the police could break into a house without a search warrant if, after knocking and announcing themselves, they heard what sounded like evidence being destroyed. Then it refused to see a Fourth Amendment violation where a citizen was jailed for 16 days on the false pretext that he was being held as a material witness to a crime. Congress renewed Patriot Act provisions on enhanced surveillance powers until 2015, and the F.B.I. expanded agents’ authority to comb databases, follow people and rummage through their trash even if they are not suspected of a crime.” In his last paragraph, Shipler describes why this matters so much:
The Fourth Amendment is weaker than it was 50 years ago, and this should worry everyone. “Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government,” Justice Robert H. Jackson, the former chief United States prosecutor at the Nuremberg trials, wrote in 1949. “Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart.”
Beyond the numerous actions described by Shipler, the Obama adminstration has pursued multiple actions perfectly described by that passage, certain to achieve that very outcome. It has continuously harassed numerous WikiLeaks supporters, repeatedly detaining them at airports and seizing and copying their laptops, all without warrants, and subpoeaned their social networking records. It is seeking (and is likely to obtain) dramatically expanded domestic surveillance powers, physically and over the Internet. It has seized the power to target American citizens for assassination without a whiff of due process. It succeeded in convincing the Supreme Court to declare that one can “materially support Terrorism” — a felony — merely by talking to, or advocating on behalf of, designated Terrorist groups. In one of the most important stories I haven’t written about (but should have), it has invasively investigated and threatened with prosecution a slew of domestic peace activists and those sympathetic to the Palestinian cause. And now the precedent has been bolstered that the prime circumstance that fuels and justifies all of these powers — war — can be unilaterally commenced by the President for any reason, for any length of time, without a pretense of democratic consent.
For someone who has no real interest in challenging government claims or undermining official actions, these policies will have no direct, perceptible effect. It’s always true that those who are supportive of institutions of authority or who otherwise have no interest in challenging them are never targeted by measures of this sort; why would they be? That’s why supporters of all Presidents — Republicans during the Bush years and now Democratic loyalists under Obama — are rarely disturbed by such developments.
Along with the apathetic, who by definition pose no threat to anyone, prominent cheerleaders for the President and his party, who labor every day to keep them in power, are the last ones who will be subjected to such programs. Obviously, nobody in the Obama administration is monitoring the phone calls at the Center for American Progress or ones placed to the large stable of columnists, bloggers and TV stars who daily spout White House talking points or devote each day to attacking the President’s political opponents. That’s why purported civil liberties concerns manifest only when the other party is in power, but vanish when their own is. Partisan loyalists are indifferent to their leader’s ability to deter dissent; if anything, they’re happy that their party’s leader wields such power and can use it against political adversaries.
But for anyone who is engaged in meaningful dissent from and challenge to government officials — the Jim Risens and other real investigative reporters, the Thomas Drakes and other whistleblowers, the WikiLeaks supporters, the Midwest peace activists — these prosecutions and these ever-expanding surveillance, detention and even assassination powers are inevitably intimidating. Regardless of how those powers are used or even whether they are, they will, as Risen put it, have “a chilling effect” on the exercise of core freedoms. As Risen explained in his Affidavit, even if Brian Ross’ story turned out to be false, the mere claim by anonymous officials that the phone records of journalists are being monitored — combined with threats of prison for their sources and even for reporters who are subpoenaed — means “the Government further contributed to creating an atmosphere of fear for journalists who publish stories about national security and intelligence issues.”
The most odious aspect of this Climate of Fear is that it fundamentally changes how the citizenry thinks of itself and its relationship to the Government. A state can offer all the theoretical guarantees of freedom in the world, but those become meaningless if citizens are afraid to exercise them. In that climate, the Government need not even act to abridge rights; a fearful populace will voluntarily refrain on its own from exercising those rights.
Nobody wants to believe that they have been put in a state of fear, that they are intimidated, so rationalizations are often contrived: I don’t perceive any violations of my rights because there’s nothing I want to do that I’m not able to do. Inducing a fearful population to refrain from exercising rights — as it convinces itself no such thing is happening — is a far more effective, and far more pernicious, means of suppressing freedoms. That’s what a Climate of Fear uniquely enables. The vast National Security and Surveillance State has for decades been compiling powers — and eroding safeguards and checks — devoted to the strengthening of this climate, and the past two-and-a-half years have seen as rapid and concerted intensification as any other period one can recall. Read Jim Risen’s Affidavit if you doubt that.