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James Risen, Obama, Holder and the NSA

Earlier this year I did an hour long interview with James Risen. We discussed his case with the Department of Justice, where he was being threatened with incarceration for refusing to reveal his source who gave him insights about NSA activities. This was before Obama and Eric Holder decided to drop the prosecution against him.  I saw him give the keynote speech at the luncheon for the Investigative Reporters and Editors 2015 conference and after his talk, in which he lambasted former Attorney General Eric Holder, I asked him to do a brief interview, based on his comments on Obama, Eric Holder and their legacies.

Rob Kall: My guest is James Risen. He was just the luncheon speaker for the Investigative Reporters and Editors conference (1800 attendees)

***

Rob Kall: I was really hoping you would recap what you said to about 1500 journalists about your experience with the DOJ and Eric Holder and where journalism is today.

James Risen: I think the main point I was trying to make is the legacy of the Obama administration on press freedom issues is a bad one. They had, in my case, sought to eliminate what’s called the reporter’s privilege, which is the ability of reporters to protect their confidential sources in criminal trials and not be forced to testify and identify sources. In my case the judge sided with me and quashed the subpoena from the Justice Department against me. But the Obama administration appealed that to the appeals court and they overturned that decision by the lower court and in their appeal to the appeals court, they said, there is no such thing as a reporters’ privilege in a federal case. And the court sided with them and that had the effect of eliminating the ability, legally, of reporters to protect their sources in federal criminal cases.

Rob Kall: In all cases?

James Risen: Any cases in which the Justice Department issues a subpoena to a reporter– the fourth district court of appeals

Rob Kall: Which covers what area?

James Risen: Which covers Virginia, MD and most of the area where the federal government operates, for instance, the CIA, the pentagon, NSA, all of the national security agencies are covered in that area. So any leak investigation against a reporter that they bring to try to force him to  to reveal sources on a national security story will be brought in that fourth circuit.

Rob Kall: Now, your case went to the Supreme court. What happened there and what’s the effect of that?

James Risen: What happened was when they appeared the lower court to the fourth circuit and the fourth circuit agreed with them and they issued a ruling requiring me to testify, I appealed that to the Supreme Court. The Supreme Court refused to hear my case so the fourth circuit ruling stands, meaning that legally, journalists in the fourth circuit have no legal reason right not to be forced to testify.

But what I did was I said, “i’m not going to testify. You can throw me in jail and hold me in contempt of court.  At the last minute the Oba… justice department blinked and decided not to do it, not to go through with it, after all that. But that ruling still stands now. The fourth circuit ruling saying that reporters have no privilege in the fourth circuit area– all the areas in the country where major national security agencies all operate.

Rob Kall: And it really doesn’t matter where in the country you are if it’s a national security agency. 

James Risen: They’ll bring–if you write about the pentagon, the CIA, the NSA or any of the other national security agencies, and they want to conduct a leak investigation, they can bring it to that area and use that law that ruling as their precedent to force you into the position as a reporter to say, “you either testify right now or you’ll go to jail for contempt of court.”

Rob Kall: And this is a huge change from the bedrock of journalism. 

James Risen: Yes. Basically they’ve destroyed the ability, the legal standing of journalists to fight leak investigations with anything other than civil disobedience and the ability to simply say, “OK, you’ll have to send me to jail. So the only thing we really have to protect us is the negative publicity that comes from throwing reporters in jail.

Rob Kall: This is what you spoke about at the lunch. 

James Risen: Right. And so, if the Attorney General cares about negative publicity then we can push back, but as I said in my speech, it’s really up to the mood of the Attorney General in the future,  how far they’re going to push it. If you’ve got an Attorney General and a president who say “we don’t care about negative publicity, we really don’t like the press,” then there’s nothing left to stop them from coming after reporters and throwing them in jail.

Rob Kall: Now you started off talking about Obama’s legacy. Talk about that more. 

James Risen: Yes. This is his legacy. This is his legacy on press issues, is that he has destroyed the reporter’s privilege and that there is nothing protecting journalists who try to do aggressive oversight  of the federal government. And that is a dangerous place for us to be right now.

Rob Kall:  And you also had some things to say about the Attorney General, Eric Holder.

James Risen: Yes. As I said, he was responsible for this. He pushed this. And then at the last second he backed off because he was getting negative publicity. And I think that was a strange behavior on his part, when he pushes aggressively for seven years, to try to force me to testify, and try to destroy the reporter’s privilege and then backs off in the face of bad publicity.

Rob Kall: So what he’s really done– he’s done nothing to you except mess up your life for a long time, but he has now set the precedent, that scares, that’s going to make it a lot harder for every reporter, in the future, who wants to investigate and work with leakers and whistleblowers.

James Risen: Yes. Exactly. It makes the next reporter– I was able to fight this for seven years, because we had a lot of back and forth in the courts, but now that the court has decided, the next reporter who faces this will go to jail much faster because the courts have ruled, in my case, very clearly, that there is no reporters’ privilege in this area

Rob Kall: What does it say about the Supreme court that they declined?

James Risen: Well it’s a very conservative court and they don’t seem very press friendly. They don’t seem to care very much about the first amendment.

Rob Kall: You said something about Holder about what he things about the press and investigative journalists. What did you say?

James Risen: I think I said “I don’t think they think much of us.” They don’t care much about us. I don’t think they care much about the future of investigative reporting. i don’t think they think much about us at all.

Rob Kall: Do you have anything else to say about Holder, because you had more. You don’t like this guy. 

James Risen: I’ll admit that. I don’t particularly like him. He made my life miserable for a long time.

Rob Kall: Have you ever met him?

James Risen: Nope, never have.

Rob Kall: What would you say to him if you did?

James Risen: I would say that I think that he made a major mistake and that he has seriously damaged the first amendment of the United States and that that’s his legacy.

Rob Kall: James Risen, thank you. 

James Risen: Thank you.

Rob Kall is the founder of the OpEdNews.

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