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.)

In recent years, the Senate has asked the Department of Justice—controlled by the executive branch—to enforce subpoenas and citations for contempt of Congress. I suggested that the Senate should simply bypass that procedure, instead using its inherent powers to hold the likes of White House advisors Harriet Miers and Joshua Bolten in contempt not only for refusing to answer questions, but moreover for the effrontery of failing to even show up! Under the ancient framework of legislative privilege and powers, the Senate could simply dispatch its Sergeant-at-Arms to arrest the recalcitrant witness and put him/her in the jail cell in the Capitol Building until testimony is forthcoming.

            I received a number of angry communications from fellow civil libertarians (and some administration partisans not so much interested in the civil liberties issue) excoriating me for suggesting that a witness should be convicted and locked up for contempt without a traditional federal court trial, but simply by a vote of the “kangaroo court” known as the United States Senate. These critics are misreading the issue at work here, because they don’t fully understand the procedure involved. Once a witness is arrested and locked up for contempt—with such incarceration aimed at coercing compliance with the legislative subpoena—that witness is not without recourse to judicial relief. The good old United States Constitution contains its much-honored guarantee of the ancient writ of habeas corpus, which allows a person unlawfully held to test his/her detention in the federal courts. The Constitution’s Art. I, Sec. 8, clause 2 reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” At that point, the courts would be able to rule on whether the equally ancient “inherent contempt” power of the legislative branch remains viable and, if so, what procedural protections must be granted to the recalcitrant witness.

            Under these circumstances, one would hope that All the President’s Men (and Women) might gain a renewed respect for habeas corpus, which they’ve spent so much time and energy seeking to destroy.