Freedom of the Press?

The Bush administration's preoccupation with serving reporters with subpoenas could have long-lasting effects beyond Washington.

James Risen should know a thing or two about government spying on Americans. Three years ago he, along with New York Times colleague Eric Lichtblau, exposed the Bush administration's warrantless wiretapping program. Today he finds himself a subject of one of the Bush administration's leak investigations—and, ironically, what he suspects is a warrantless effort to trace his communications with sources.

This past January Risen got a subpoena demanding that he appear before a grand jury convened by the US Attorney in Alexandria, Virginia, to testify about the identity of the sources for a chapter in his 2006 book, State of War, dealing with cia operations against Iran. (He hasn't testified, and his refusal to cooperate could land him in jail.) "One of the great ironies is that I may be the only one who has to go to jail out of all this," Risen told me, "while Congress is trying to give immunity to the telephone companies."

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Contacts of his have also been called to testify: "The intimidation begins with the document itself," says one who asked to remain anonymous. "'You are commanded to appear'—that will get your attention. It's delivered by a couple fbi guys. The trick is, too, they can impoverish you. You should expect to pay minimum 10 grand" for the lawyer needed to prepare for a grand jury appearance.

How did Justice track down Risen's contacts? Those who appeared before the grand jury were shown what they were told were Risen's phone records—even though neither Risen nor his newspaper have actually been subpoenaed for those records. Risen and the Times suspect that the government is monitoring Risen's communications using some other means, perhaps a "pen register" device that records the numbers called from a particular phone. A pen register does not require a warrant (though it requires approval by a judge).

The Bush administration's preoccupation with journalists and their sources may have long-lasting effects beyond Washington. Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, notes that a 2007 study found that news outlets around the country have seen a fivefold increase since 2001 in the number of subpoenas seeking information on confidential sources. Press freedom advocates have been pushing a federal shield law for journalists (a version passed in the House and at press time another was pending in the Senate). But the measure has a national security exception that could leave the likes of Risen and Lichtblau unprotected—and Bush has vowed to veto it if it passes.

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