The Obama administration can't have it both ways. It can't be a staunch defender of press freedom and at the same time go after journalists who rely on confidential sources.
Yet this inconsistency, some would say hyprocrisy, within the Justice Department is on full display in the case of James Risen, a Pulitzer Prize-winning reporter for The New York Times who covers national security.
Mr. Risen was ordered by a divided panel of the U.S. Court of Appeals in Richmond, Va., to testify whether former CIA employee Jeffrey Sterling, who is accused of leaking classified material, was a source for the reporter's 2006 book. "State of War: The Secret History of the CIA and the Bush Administration" detailed intelligence failures under President George W. Bush and described the administration's warrantless wiretapping program.
A federal judge in 2011 declined to compel Mr. Risen to reveal his source, saying he was protected by a limited "reporter's privilege" under the First Amendment. But on Friday the 4th U.S. Circuit Court of Appeals sided with the Justice Department in a 2-1 decision that "there is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify in criminal proceedings."
Judge Roger Gregory dissented, warning that "The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society." The Obama administration should take his words to heart.
Requiring Mr. Risen to reveal his source is a blow to journalism, particularly in the realm of national security reporting since the 4th Circuit includes Maryland and Virginia, where much of the government's intelligence and surveillance agencies, such as the CIA, are based.
By demanding that Mr. Risen break his pledge of confidentiality, the Obama Justice Department pushed the court into setting a chilling and destructive precedent that will go beyond this single case. The Sterling prosecution is one of seven leak-related cases brought under the 1917 Espionage Act by the Obama administration, compared to only three under all other previous presidents.
Mr. Risen plans to appeal to the Supreme Court and vows to go to prison if he ultimately loses. That wouldn't be necessary if the administration made good on its promise to respect press freedom and reporter confidentiality.
The ruling comes at an inopportune time for Attorney General Eric H. Holder Jr. In May he had to defend the Justice Department's seizure of two months of phone records of Associated Press staff members and its surveillance of personal emails belonging to a Fox News reporter. On July 12, Mr. Holder tried to make amends by unveiling new guidelines for leak investigations that would significantly limit the cases in which reporters' materials would be sought, then President Obama promised to seek a federal shield law to help journalists protect their sources.
The administration's charm offensive is not enough -- not when it's trying to criminalize journalism.
It's true that reporters need a national shield law, but they also need a White House that lets journalists do their jobs, which sometimes requires confidentiality. In the out-of-control case of James Risen, the Obama administration can start to clear up the doublespeak by withdrawing its demand that the reporter betray his source.