2015 Silha Lecture : "Clear and Present Danger..."

Since the attacks of September 11, 2001, government officials often justify secrecy as necessary to protect national security.  But without information, how can citizens hold their government accountable?  To gather the news the public needs to know, journalists may turn to sources who will speak only on the condition that their identities are kept confidential.  When leaks trigger criminal investigations, zealous prosecutors subpoena reporters to force them to reveal their sources.  Journalists who refuse to testify face the threat of fines and jail.  The result is a no-win situation for sources, for journalists, and for the public.

One journalist who has faced this predicament is New York Times investigative reporter and Pulitzer Prize-winner James Risen.  On Monday, October 19, 2015, Risen and his attorney, Joel Kurtzberg, will discuss the legal and journalistic challenges that arise when reporting the national security beat and using confidential sources at the 30th Annual Silha Lecture, “Clear and Present Danger: Covering National Security Issues in the Post-9/11 World,” sponsored by the Silha Center for the Study of Media Ethics and Law.

In 2011, Risen was subpoenaed to testify in the prosecution of Jeffrey Sterling, a former Central Intelligence Agency officer accused of several counts of violating the Espionage Act.  During a four-year court battle, federal prosecutors demanded Risen’s testimony, claiming he was the only person who had direct knowledge of whether Sterling had actually disclosed classified material.  Despite orders instructing him to testify, Risen refused to identify the confidential sources for his book, State of War, and two articles on national security issues, one of which quoted Sterling.  Risen appealed the orders to the U.S. Supreme Court, which refused to hear his case.  In January 2015, Department of Justice officials finally conceded in court filings that Risen’s consistent and steadfast refusal to identify his source “laid to rest any doubt concerning whether he will ever disclose his source or sources.  He will not.”  They dropped the subpoena, and Sterling was later found guilty of violating the Espionage Act without Risen’s testimony.

Despite this victory for his client, Kurtzberg said Risen’s battle demonstrates how far the government will go to force a reporter to reveal confidential communications. “The significance of this goes beyond Jim Risen.  It affects journalists everywhere.  Journalists need to be able to uphold that confidentiality in order to do their jobs,” Kurtzberg told the New York Times.  The newspaper commented in an editorial that “The abandoned pursuit of Mr. Risen leaves behind an atrocious legal precedent: a 2-to-1 ruling in 2013 by the United States Court of Appeals for the Fourth Circuit, in Virginia, which denied the existence of any reporter’s privilege in the First Amendment or common law.”

About the Speakers:

James Risen is a graduate of Brown University, where he majored in history, and holds a master’s degree in journalism from the Medill School of Journalism at Northwestern University.  He joined the New York Times in 1998 after previously working for the Los Angeles Times.  He has won several awards for his journalistic work, including Pulitzer Prizes in 2002 and 2006, the 2006 Goldsmith Prize for investigative reporting, and the 2003 Cornelius Ryan Award from the Overseas Press Club.  He is the author of four books, two of which are national bestsellers: State of War: The Secret History of the CIA and the Bush Administration (Free Press, 2006), and Pay Any Price: Greed, Power and Endless War (Houghton Mifflin Harcourt, 2014). 

Joel Kurtzberg is a partner at the law firm Cahill Gordon & Reindel LLP in New York who focuses on general commercial litigation. He has extensive experience in legal issues related to media organizations and the First Amendment, representing reporters in cases involving former CIA operative Valerie Plame and alleged spy Wen Ho Lee.  He teaches a mass media law course as an adjunct professor at Brooklyn Law School as well as a course on Internet law as an adjunct professor at Fordham University School of Law.  He formerly served as the New York State Bar Association’s chair of the Media Law Committee.  Kurtzberg graduated from Harvard Law School in 1996.

For more about this event, click on any of the following links:
Video of the 30th Annual Silha Lecture with New York Times investigative reporter and Pulitzer Prize-winner James Risen and his attorney, Joel Kurtzberg.
Silha Bulletin story promoting the 30th Annual Silha Lecture.
Silha Bulletin story following the 30th Annual Silha Lecture.