Journalist Talks Confidential Sources, Getting Subpoenaed And His New Book
TERRY GROSS, HOST:
This is FRESH AIR. I'm Terry Gross. My guest, New York Times investigative reporter James Risen, is facing the possibility of prison for refusing to reveal his source in a story in which Risen uncovered a botched secret CIA operation. The operation was intended to sabotage Iran's nuclear weapons program. A former CIA officer is facing criminal charges for allegedly leaking the story to Risen. Risen has been fighting a subpoena ordering him to testify. The trial begins in January.
Risen's investigation into that CIA program wasn't published in the Times. It was published in Risen's 2006 book "State Of War." But the Times did publish the story Risen is best known for, which revealed the National Security Agency's secret warrantless wiretapping program. The Bush administration urged The New York Times not to reveal the program's existence, saying it could jeopardize national security. After a long delay and much deliberation, the Times published the story in 2006. Risen and Times's colleague Eric Lichtblau shared a Pulitzer Prize for that investigation. The citation praised their, quote, "carefully sourced stories on secret domestic eavesdropping that stirred a national debate on the boundary line between fighting terrorism and protecting civil liberty," unquote. James Risen has just written a new book called "Pay Any Price: Greed, Power And Endless War." James Risen, welcome back to FRESH AIR.
JAMES RISEN: Thanks for having me.
GROSS: So, you know, the Justice Department subpoena to reveal your sources, it's not about the story you're most famous for, which is the warrantless wiretap story, it's a story that was in your previous book about the Iranian nuclear program, about a secret CIA operation called Merlin. And I guess I'm really curious why is a subpoena about that operation and not the more famous operation, the warrantless wiretapping one?
RISEN: Well, that's a good question. I've wondered that myself for a long time. In 2000 - late 2005 when Eric Lichtbau and I wrote the NSA story about warrantless wiretapping, and then my book "The State Of War" came out about two weeks later, which included both the NSA story and the Merlin story, the Bush administration first announced - in fact, President Bush announced that he was going to conduct a leak investigation of the NSA story. And they did. There was a grand jury and paneled to investigate the NSA story. And then they had paneled another grand jury to investigate the Merlin story, so there were teams of FBI agents all over the place.
And they had a couple different parallel leak investigations going on for a long time. And I believe that what happened - I don't know this for a fact - but I believe what happened was that they decided ultimately they didn't want to take on The New York Times in a constitutional showdown over the NSA story which was very questionable - had a questionable legality. And I think they decided they wanted to find something in my book - some other thing in my book - that they could isolate me and come after me by myself instead of The New York Times. And so I think - I know for a fact that the FBI questioned people about a lot of other things in my book in addition to Merlin. I think they were scouring my book, looking for something to conduct a leak investigation on against me in isolation from The New York Times.
GROSS: So you refuse to reveal your sources on this Merlin story. And for anyone who's unclear about why, why don't you explain why you, as a journalist, refuse to reveal your source or sources?
RISEN: I believe that you cannot have aggressive investigative reporting without receiving confidential information and classified information in order to understand what the U.S. government is doing. The entire War on Terror has been a classified war, a secret war. And virtually everything that we now know about what the - what's happened in the War on Terror has been disclosed to the press. And if you look back and look at what the U.S. government has officially and voluntarily revealed first on its own, there's almost nothing. And so if we didn't have an aggressive press investigating national security and the War on Terror, we would - we have been fighting a war on for 13 years and know virtually nothing about what was going on. And so to me, this is a bedrock thing that I have to do as part of pursuing my career.
GROSS: But again, your refusal to reveal a source, why that's important to you?
RISEN: Well, it's - you cannot conduct aggressive investigative reporting without confidential sources. Whistleblowers have to to reveal things that can threaten their career or their livelihood because everything is secret and classified. In order to talk about almost anything important to national security or the War on Terror, people have to take risks in order to tell the truth about what's going on. And we as reporters have to be willing to provide confidentiality in order to receive that information and report on that information and tell the American people what's really happening. If we don't have the ability to maintain confidential sources and protect our sources, then people won't be willing to talk to us, and we won't be able to find out what the government is doing.
GROSS: Since you're being subpoenaed because of the story you broke about the secret Merlin program, can you give us a very short description of what that program was?
RISEN: It was an operation in which the CIA tried - as early as the Clinton administration - to try to give nuclear blueprints to the Iranians through a Russian defector. And the idea was that these nuclear blueprints would have flaws in them that would send the Iranians down the wrong design path. But the problem was that Russia defector who they gave these designs to, who was also a nuclear scientist, immediately recognized the flaws, and he told the Iranians that what I'm giving you are flawed designs, which tipped off the Iranians that they should look for flaws and then try to figure out a way to use the rest of the information in these blueprints that had valuable information in them. So the question is, why did the CIA go through with an operation when the Russian warned them that he could recognize the flaws and knew that they were messed up and let anybody - any Iranian would be able to recognize the same thing? And they would also thus be able to take the good information and parse it from the bad information that they were sending them. So it was a mismanaged operation by the CIA, and I believe - I believe they got angry because I embarrassed them.
GROSS: So the Russian warned the CIA that he could see the flaws in it, and then he warned the Iranians, too?
RISEN: Yes, after he recognized the flaws and that they were so obvious, he was afraid of what the Iranians were going to do to him by passing flawed designs. And so he sent - he gave them a letter when he gave them the designs that said you'll see that there are problems with these designs, so, you know, it was a big tipoff to the Iranians.
GROSS: And what became of him?
RISEN: It's unclear - unclear what happened to him later after this.
GROSS: OK. So anyway, so that's the story that you're being subpoenaed for.
GROSS: You're being subpoenaed, asked to give your source for that story. Your lawyers tried to quash the subpoena, and that's been upheld in the lower courts. But a federal court said that you had to reveal your source. And the judge who wrote the decision wrote no First Amendment privilege protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in.
RISEN: That was the very fundamental change in this case. This case had, you know - it was kind of a case that was, you know, not a fundamental showdown to begin with over press freedom. But the Obama administration turned - in my opinion - turned it into a fundamental showdown over press freedom, when in their briefs to the Fourth Circuit for the appeal, they said the reason we are appealing this is we do not believe there is any such thing as a reporter's privilege in a criminal case. And the Fourth Circuit sided with them. And then earlier this summer, the Supreme Court refused to hear the case, effectively siding with the government.
GROSS: So what makes this a criminal case, and what's the distinction between - what's your understanding of the distinction that the Justice Department would make between a reporter revealing their source in a criminal case and in any other story?
RISEN: Well, I think just about every leak investigation is a criminal case. All of the cases that the Justice Department or the Obama administration have brought, you know, I think they've got eight - eight or nine, I forget the latest number - prosecutions that they've conducted in leak investigations have all the criminal cases. All that really means is that they want to eliminate the possibility that reporters will have any protections from testifying in any leak investigation.
GROSS: What makes leaking to a reporter a crime?
RISEN: Well, I don't think it is a crime, but the government seems to think it is. You know, in this case, they've used - and many of these cases - they've used the Espionage Act in trying to compare, you know - in a number of these cases, they've tried to compare whistleblowers to spies, which I think is a real abuse of government power.
GROSS: If you're just joining us, my guest is James Risen. He's an investigative reporter for The New York Times. He's the reporter who broke the warrantless wiretapping story and is now facing prison for not revealing his source or sources. And now he's the author of a new book called "Pay Any Price: Greed, Power And Endless War." That's a series of investigations into who is making money on the War on Terror and what are some of the secret programs within it. Let's take a short break, and we'll talk some more. This is FRESH AIR.
GROSS: If you're just joining us, my guest is James Risen, and he broke the warrantless wiretapping story. He's now the author of the new book "Pay Any Price."
"60 Minutes" just did a piece about you. And Michael Hayden, who was head of the National Security Agency when you were investigating the warrantless wiretap story and the Merlin story, said that - well, Leslie Stahl asked him if you should be compelled to divulge your source. And he said, I am like America, conflicted. You're talking about ruining lives over things about which people are acting on principle, so I'd be very careful about it. I don't understand the necessity to pursue Jim. I'm conflicted. I know the damage that is done, but I also know the Free Press necessity in a free society. The government needs to be strong enough to keep me safe, but I don't want it to be so strong that it threatens my liberties.
Were you surprised to hear Michael Hayden say that?
RISEN: Yeah, I was a little bit. I think I was kind of glad to hear it. I think he may have changed his views on this, over the years. I haven't talked to them about that, so it was interesting to hear. We don't talk a lot.
GROSS: Do you - yeah.
RISEN: But it was - it was - I think, you know, the public has grown more skeptical of the War on Terror, in general. And that's kind of the point of my new book which is - the skepticism - you know, I think that we've gone now down this road of the War on Terror for 13 years, and I think just about any thinking person is going to be thinking twice about all the things that we've done as part of that.
GROSS: When you had the warrantless wiretapping story, you wanted to publish it in The New York Times. The New York Times declined to publish it for about a year because the Bush administration had told the Times that to publish the story would be to risk national security. And, you know, my understanding is the Bush administration basically told the editors of the Times, the blood is on your hands if there's a terrorist attack.
GROSS: And, you know, your editors understandably, I think, took that to heart. You were pretty angry about that. It wasn't until your book was about to be published and you were going to publish this story in your book that the Times decided to publish it in the paper. And I'm wondering why you weren't concerned about things that you might be revealing by revealing the warrantless wiretapping story, that might have jeopardized national security in the sense that, you never know what it is that you don't know, you know, that - where this might, you know, jeopardize a secret operation that was about to foil al-Qaida or, you know, who knows?
RISEN: Right, right. No, I heard all of the arguments from the government, but I also was talking to all the people who had talked to me and Eric Lichtblau about this program. And there were lots of people in the government who were very upset that this program existed - that it was going on. They believed it was illegal and possibly unconstitutional. And so while the government officials were presenting us with a - with these arguments to the newspaper to stop publication - we, Eric and I, were also listening to other people in the government who were telling us this was illegal. And we knew a lot more about this program over time and knew that there was a huge debate going on inside the government and that that wasn't being reflected by the government officials who were trying to stop the publication.
GROSS: If you are sent to prison, do you have any idea how long your sentence might be or where you might be sent?
RISEN: No, not really. I think it's up to the judge, as far as I can tell. The trial, subpoena, it's, I guess - from my understanding, the judge has a lot of discretion on how to do it.
GROSS: Have you allowed yourself to imagine what it might be like if you are sent to prison, if you do lose this case?
RISEN: Yeah, yeah. I've thought a lot about it. I've had - you know, this thing's been going on for now seven or eight years, so I've had a lot of time to think about it. And I've just kind of gotten used to - used to it. It's just now part of the background noise in my life. And I worried about it at first for the first couple years, I guess. It kind of made me nervous, but it doesn't anymore. You now, I know that - you know, where I stand and what I want to do, and so I don't have to question that anymore.
GROSS: I've been reading that there are other things that the government - other records of yours that the Justice Department was able to access. What do you know that the Justice Department has access of your personal records?
RISEN: Well, there was a filing in the court case a few year - a couple years ago in which it was somewhere it said they got my - I think my credit card records, my credit reports, my travel records, probably my phone records, just about everything - just about all of my - any kind of commercial transaction record that they can get a hold of.
GROSS: And what's your understanding of whether that was legal or not?
RISEN: I don't know. I don't know how they did it. They never asked - they never, you know, presented a subpoena to me to get that information. So I'm not sure how they got it. It's possible they did it through some, you know, what they call a national security letter, which is one of these secret things that they got after - they've been doing a lot since 9/11 where they go present a letter to the people who hold those records. So I'm not sure what - how they got it.
GROSS: Do you have any concerns about information that the Justice Department might have gotten through your personal records? Are you concerned that this might inadvertently betray other sources?
RISEN: I don't know. I don't know what's going to happen. You know - like I said, I can't really talk about the details of this case too much
GROSS: Sure, right.
RISEN: But, you know, I think it's pretty dangerous when the government has that kind of power to just go in to rummage around people's lives like this.
GROSS: So we've been talking about the story that you were subpoenaed for, which is a story about a botched program relating to how the U.S. tried to sabotage Iran's nuclear program. But the story - the biggest story that you broke was the warrantless wiretapping story during the Bush administration. A lot more information has come out about that as a result of the Edward Snowden leaks, and you wrote a couple of pieces based on some of the papers that were leaked by Snowden. What are some of the key things you learned about the warrantless wiretapping that you didn't know when you wrote the story?
RISEN: You mean from the Snowden documents?
GROSS: From the Snowden documents.
RISEN: You know, it's really interesting the - we had kind of - I guess the best way to phrase it is Eric Lichtblau and I had kind of, you know, put out the broad outlines of the NSA program. And what Snowden has done is provide documents that fill in the blanks on a lot of areas and to also show the - how broad the sweep of these programs have - how they've grown exponentially since the Bush years under Obama because the growth of technology - the growth of social media and everyone's online footprint has grown just in the last five years or so.
The NSA have taken advantage of that, and that's what I think Snowden really revealed to me, was that it's hard to think back just five or 10 years ago that our online presence as individuals was much smaller than it is today. And what Snowden revealed was, OK, you had this Bush administration program to begin to spy on Americans and that what he - I think the most important thing he showed was that under Obama and during this time period, they have taken advantage of this massive growth in the online presence of Americans and have been secretly exploiting that digital growth and become kind of this shadow presence behind, you know, our new online selves. And that, to me, was the most interesting, you know, kind of general point that Snowden showed.
GROSS: James Risen will be back in the second half of the show. His new book is called "Pay Any Price: Greed, Power And Endless War." I'm Terry Gross, and this is FRESH AIR.
GROSS: This is FRESH AIR. I'm Terry Gross back with James Risen, an investigative reporter with The New York Times. He shared a Pulitzer Prize for breaking the story about the National Security Agency's warrantless wiretapping program launched during the Bush administration. Now Risen is facing the possibility of prison for refusing to name his source for a story he wrote about a botched CIA operation. That story wasn't published in The New York Times. It was published in his 2006 book "State Of War." He has a new book called "Pay Any Price: Greed, Power And Endless War."
One of the chapters of in your book "Pay Any Price" is about the whistleblowers who tried to make public the warrantless wiretapping story...
GROSS: ...And tried to get Congress to stop what they considered to be the illegal aspects of warrantless wiretapping.
GROSS: And your focus is on Diane Roark, a staffer - she was a staffer on the House Permanent Select Committee on Intelligence, which handles oversight of the National Security Agency. You describe her as perhaps the most courageous whistleblower of the post-9/11 era, yet her story has never been fully told. She never received the recognition deserves. My question is, does she want the recognition?
RISEN: That's a good question. She's a very modest person. She now lives quietly in Oregon. She retired from the government and - but I - to me, she's one of my heroes. She's a woman who, you know, tried to call - tried to put a stop to the NSA program early on, but she never went to the press. She never went outside the system. She tried to do it within the system, and she kept getting knocked down and blocked. And she went all the way to top of the government. And all - the only thing she could get for her - all of her troubles was an FBI raid on her house because they thought she was leaking when she wasn't. And so it's a really, I think, a heroic story by her. But it also shows to me - her case shows why people like Snowden had to leave, had to go out of the country or had to take, you know, avoid - take measures to avoid prosecution because someone like Diane tried to go through the system. And she was constantly shut down and questioned and persecuted for years.
GROSS: She was a staffer on the House Permanent Select Committee on Intelligence. What approach did she take with trying to alert Congress about what she perceived to be illegal aspects of the program?
RISEN: Well, what's really interesting about her is that right, you know, before 9/11, she had begun to - her job as - on the House Intelligence Committee was to oversee the NSA. And she began to do that in the '90s with - and began to hear about some of the problems that the NSA was having in keeping up with the growth of the Internet and digital information that was, you know, kind of nontraditional. That was not what the NSA had really grown up doing. What they had done for years and years, for decades really, was listen to, you know, radio and other kind of communications of the Soviets and other adversaries. And the growth of the Internet in the '90s kind of caught the NSA by surprise, and they didn't quite know what to do with it at first because it wasn't classified. It wasn't a secret communications channel for the Russians or for anybody else.
And so they - she was very critical of some of the early efforts by the NSA to deal with the growth of online information. And she got to know some people inside the NSA who were also critical of how it was being handled. And so those people - she had developed these relationships, and then 9/11 happened. And after 9/11, some of those people came to her and said, we've - this is what we're hearing about what the NSA is now doing. They're now turning some of the pilot projects we had done to deal with how to - you know, how to deal with new volumes of information. They're now turning those on the American people. And essentially what she was told about was the NSA warrantless wiretapping and metadata programs.
And when she heard about these, she began to go to her bosses inside the House Intelligence Committee. And she found out that the - pretty quickly she found out that the House Intelligence Committee chairman and ranking member already knew about it and were keeping it secret. They were not telling anyone else on the committee. And then she tried to go to a lot of other friends she had inside both the intelligence community and the White House and the courts. And everywhere she turned, it turned out that there were, like, these very high-level people she knew who already knew about the program and weren't going to cooperate with her in her efforts to try and stop it because she believed it was unconstitutional. She even tried to go to the Supreme Court to try and stop it.
But the most dramatic showdown she had was with the NSA director Mike Hayden, where she went back - she went to meet with him and told him - and talked to him and said, you've got to know that this is illegal and unconstitutional. And Hayden and she had this very dramatic showdown in Hayden's office, where Hayden kept saying, you know, I've got the ability to do this. We've got the power, and we can get a majority of nine. And she came away from that realizing, oh, he thinks he can get the Supreme Court to back him if he needs it. And so she tried to get to Chief Justice Rehnquist at the time to try to tell - warn him about this and was unable to get any response from Rehnquist. And she also went to the White House and then realized that the people she knew at the White House knew about the program, too. And it was almost like she was living in "The Matrix." You know, she knew about something. She was going to all these people and finding out that all the people she thought were her friends already knew this big secret and just were keeping it secret and were not going to question what was going on. She finally retired, and then after our story came out, you know, she was questioned and she was raided by the FBI.
GROSS: They thought she might be a source for your story.
RISEN: Yeah, yeah. And she never was. She never talked to the press. And it was just a remarkable story to me of someone who tried to do it the right way, someone who tried to go through channels and was ended up victimized and persecuted for it. And to me, her story is the perfect answer to anyone who says, why didn't Edward Snowden just go through channels?
GROSS: So she said she would never go to the press. She told Michael Hayden, then the director of the National Security Agency, that she would not go to the press. And you're saying...
GROSS: ...She didn't go to the press. Why was she so against going to the press when all of the legitimate channels she went to, those who people already knew, and they weren't doing anything about it?
RISEN: Well, she was - she believed in following the channels. I think she never - she never thought about going outside the government, outside the system. She was, you know - she had lived, she had been working in the government her whole life. She'd been in the Reagan administration. She was a Republican. And so she was someone of the system, and she thought the system always worked. And I think this was the great tragedy of her life, in some ways, was that the system she believed in betrayed her.
GROSS: If you're just joining us, my guest is James Risen. He's an investigative reporter for The New York Times. He, along with Eric Lichtbau, broke the story about warrantless wiretapping. Now Risen is facing a prison sentence for refusing to reveal his source or sources for that story. And he has a new book called "Pay Any Price: Greed, Power And Endless War," which is a series of investigations into who's making money on the War on Terror and what are some of the secret operations within it. Let's take a short break, then we'll talk some more. This is FRESH AIR.
GROSS: If you're just joining us, my guest is New York Times investigative reporter James Risen. He broke the warrantless wiretapping story and has broken many other national security stories as well. He's the author of the new book "Pay Any Price: Greed, Power And Endless War" that's about his investigations into government programs in the post-9/11 era.
You recently wrote an article in The New York Times with Laura Poitras who broke the Edward Snowden story along with Glenn Greenwald. And you reported on how American intelligence is trying to harvest facial imagery with the intention of - what's it for?
RISEN: Oh, well, it's - there's a lot of uses for facial recognition technology, but what we found was that facial recognition has become - in a way that no really understood before has become a central focus of the NSA today. And that - you know, that this kind of biometric data is now in some ways surpassing the metadata as a fundamental building block of what the NSA does. They're taking imagery - both facial and others - and manipulating and exploiting it in a lot of different ways that no one understood prior to, you know, the leaking of some of the Snowden documents.
And it shows that now the NSA has the ability to take facial recognition, facial images that they get from, you know, say your Facebook page or email or text message or whatever - wherever, you know, imagery passes through the Internet, then they can link that up with a signals intelligence, which is the communications that they intercept - either phone metadata or email metadata or content of communications. And they can marry that up and then begin to create a massive profile of an individual. And find - basically find where you are, what you're doing, who you're seeing and virtually anything about you in real time. And at looking at, you know, passport photos, for instance, and all those kind of border-crossing information or travel records or flight records. The mosaic that they can create about your life is pretty incredible.
GROSS: Have you thought a lot about what you consider to be the legitimate investigative tools of national security in the United States?
RISEN: Yeah. I don't think that we should limit the - I think that the government has a valid interest in investigating terrorism and finding terrorists. The question I have is, how much of our civil liberties and privacy are we willing to give up as part of that? And the worst part of all of this is that the government has tried to do it all in secret so that there's no debate about how it's all being done because it - you know, a debate is inconvenient for them, and it could be embarrassing. They would much rather set this whole - create this whole new world of intelligence, you know, without us - without having a real public debate so that to me is the biggest problem.
GROSS: But isn't it challenging to have a debate about a secret because then the secret is no longer secret? Like, once you've had the public debate and you've made enough details public so that we can have that debate, those details are also read by people who you're trying to conduct espionage on for legitimate reasons?
RISEN: Yeah. That's the argument that the government always uses. And a lot of people buy into that argument, but I would - my point is that you can always say that about everything that the government does. But in a society where we have a rule of law and a democracy, if you allow the government to have a massive transformation of the way it does business without any real debate, then you're not going to be a real democracy anymore. And that's what's happened since 9/11, is that we have allowed the government to completely overhaul and transform virtually the entire intelligence community and create a new counterterrorism apparatus and a new national security state that is massive with virtually no debate at all. And there is no reason that we can't have a more open and honest debate about the growth of that than we've had. It would not affect the ability of the government to conduct counterterrorism operations at all.
GROSS: When you were going into journalism, did you admire Woodward and Bernstein? Did their work contribute to you wanting to become an investigative reporter?
RISEN: Oh, sure, yeah. I was in high school, I think, when Watergate happened. And so I watched, you know, that - I grew up in Washington, so I knew. I was reading The Washington Post, and, you know, so that had a big effect on me. "All The President's Men" and all that really affected me. I think my whole generation of reporters who were the post-Watergate reporters were all affected by Woodward and Bernstein.
GROSS: So Woodward and Bernstein's reporting, like, brings down a president, and they become celebrities. They, you know, go on to have really interesting careers. You have this really big story of warrantless wiretapping; you're still being subpoenaed; you're still facing prison, so your big story turned out kind of differently than the celebrations facing Woodward and Bernstein.
GROSS: Did you ever expect anything like that would happen?
RISEN: Well, I think the times have changed. I think we had this period in journalism for about 30 years where there was the government and the press. The government knew that the press was trying to break big stories and was kind of trying to investigate national security, and for a long time. And they had an uneasy kind of ambiguous relationship over leak investigations. They would conduct a leak investigation, but then they would never really aggressively go after anyone either. They wouldn't go after whistleblowers or reporters very aggressively. And I think it's only after the - after 9/11 and after the plane case, which you may remember where Judy Miller was sent to jail. I think the post-9/11 age, the government has decided to become much more aggressive against reporters and whistleblowers than they were before. And so I think that's the big change. It's a different climate and a different attitude by the government.
GROSS: What kind of protections do you think a journalist should have when it comes to protecting your sources?
RISEN: Now that the government has changed the way they deal with these things, I think we need a federal shield law. Almost every state has a shield law for reporters in which reporters cannot be forced to testify in state courts, but the federal government doesn't have that, and Congress has been working on a shield law, but it's never been passed. And so I think we need a shield law that will allow for - it will provide for protections for reporters against having to testify.
GROSS: What do you think are the odds there will be such a law?
RISEN: It's up and down. It's been - every once in a while, it looks like it might pass, and then they back off. And it's been dragging around in the Congress for several years. So unfortunately I doubt that it'll pass anytime soon. It will probably take some big crisis like a few reporters going to jail before anybody does anything about it.
GROSS: James Risen, thank you so much for talking with us.
RISEN: Thanks for having me.
GROSS: James Risen is an investigative reporter for The New York Times and author of the new book "Pay Any Price." Coming up, Kevin Whitehead reviews a new release of a 1990 concert recording featuring the late Charlie Haden and Jim Hall. Kevin describes it as an unofficial memorial album. This is FRESH AIR. Transcript provided by NPR, Copyright NPR.