Out of the Shadow, The Gray Lady in Trouble

The New York Times reported this morning that its Pulitzer Prize-winning reporter and author, James Risen, was subpoenaed by a federal grand jury sitting in Alexandria, Virginia, which seeks the reporter’s sources for a chapter of his 2006 book, State of War. The grand jury seems most concerned about information that was in one of the book's chapters, but which had not previously been reported in the Times' earlier reporting of the super-secret NSA warrantless wiretapping program.

I wrote about the possibility of legal action against Risen (and his colleague at the Times, reporter Eric Lichtblau) in my January 6, 2006, "Freedom Watch" column in the Boston Phoenix. I had warned that the feds could not only convene a grand jury, but arguably could also get an indictment for espionage. The only reason the Department of Justice might not go that far, I suggested, would be because it doubted it could extract a unanimous jury verdict against the newspaper on its home turf -- in Manhattan -- or in Washington D.C., where juries are typically recalcitrant, anti-government, and heavily minority. Since the DOJ would not want to lose such a case at trial, the Times and its reporters, Lichtblau and Risen, might be spared a criminal prosecution for espionage.

But according to the 02/01/2008 report in the Times, the grand jury convened in the Alexandria, Virginia, federal courthouse for the Eastern District of Virginia. The CIA's headquarters are located a few miles away (within the same judicial district) in Langley, and many federal court proceedings involving the CIA take place at that courthouse. So the feds didn't need to find some obscure reason to keep the case out of a hostile district in Manhattan -- let alone across the Potomac River. Virginia juries and judges are far more pliable and government-friendly than is the case in New York or Washington. And so the subpoena issue, while important, is just a preliminary worry. The real concern is the threat of an espionage indictment of the reporters in a government-friendly jurisdiction. Fingers are crossed here for the survival of the First Amendment rights of the press to report on important government over-reaching.

(Thanks to James Tierney for his assistance.)

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