But it didn’t go away for everybody, not least for the reporters who broke the stories and for many of their sources and contacts. The Bush administration has left in its wake a demoralized national-security press corps, battered by leak investigations, subpoena-happy prosecutors, and a shift in the legal and wider culture away from the previous understanding of journalism’s mission and First Amendment protections. A 2007 study by The Reporters Committee for the Freedom of the Press found a five-fold increase since 2001 in subpoenas seeking information on a media outlet’s confidential sources.
While the NSA and black-site stories exposed previously unknown Bush administration policies that some observers believe could be illegal and unconstitutional, the administration, in highly coordinated campaigns, tried to turn the onus of the revelations on its head, accusing the newspapers that exposed the information of treachery. “There can be no excuse for anyone entrusted with vital intelligence to leak it, and no excuse for any newspaper to print it,” Bush said in St. Louis on June 28, 2006. That same week, at a fundraiser in Nebraska, Vice President Dick Cheney said: “Some in the press, in particular The New York Times, have made the job of defending against further terrorist attacks more difficult by insisting on publishing detailed information about vital national-security programs.”
The Times’s Risen, in particular, is still haunted by an investigation that has been turned upside down and in whose crosshairs he now finds himself. In January 2008, Risen received a federal subpoena, issued by a grand jury in Alexandria, Virginia, which demanded that he testify about the identities of his confidential sources for a chapter in his 2006 book, State of War. Though the chapter for which Risen was subpoenaed described a botched CIA operation designed to foil Iran’s nuclear program—information that never appeared in the Times—Risen’s book also contained the information about the NSA’s warrantless surveillance program that he and Lichtblau had reported but that the Times had sat on for more than a year at the administration’s request. Risen’s decision to publish the information in his book was a prime impetus for the Times’s decision to revisit the issue and ultimately publish the domestic-snooping information in December 2005.
Risen has said he will resist the subpoena, even if he has to go to jail. And though he has some of his profession’s highest achievements to show for his work—the aforementioned Pulitzer and several nonfiction books on intelligence matters—they have done little to ward off the sense of anxiety and anger over his Kafkaesque predicament: “I do think one of the great ironies is that I may be the only one who goes to jail out of all this,” Risen said in May, “while Congress is trying to give immunity to the telephone companies.”
Even before the subpoena was delivered to his lawyers this past January, some of Risen’s contacts were being subpoenaed to appear before the same grand jury. “The intimidation begins with the document itself,” says one Risen contact, who was subpoenaed and who asked to remain anonymous. “ ‘You are commanded to appear’—that will get your attention. It’s delivered by a couple FBI guys.”
The leak investigations, concern about government scrutiny of them and their contacts, partisan attacks on their ethics and patriotism, and hours huddled with lawyers have taken a toll on reporters. “It is certainly something you worry about every day,” says Lichtblau, who covers the Justice Department for the Times. “It has an effect on how you do the job, an effect on the people you talk to.” In his book Bush’s Law: The Remaking of American Justice, Lichtblau amplifies this point with a story of a very close friend who worked in the government. After Lichtblau’s domestic-spying piece and a subsequent, related piece on the swift banking-transaction network appeared, his friend’s bosses “told him that he would either have to end his friendship with me, or leave the government,” Lichtblau says.
“It’s a witch hunt,” Risen says. “They are trying to shut us down. It’s the most secretive administration in modern history.”