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The answer to this question is that we simply cannot know for certain. What we do know, though, is that the overwhelming majority of subpoenas to members of the news media are issued by state, rather than federal, courts.
The 319 print and television news outlets and media attorneys nationwide who provided data for a Reporters Committee report received a combined 823 subpoenas in 2001. If this data are extrapolated to the 2,300 or so news media organizations nationwide, about 5,930 subpoenas, or an average of nearly 2.6 per organization, were issued that year.
Broadcasters generally receive more subpoenas than newspapers, an average in 2001 of 7.7, compared to 0.7 respectively. Lawyers for television journalists say that many litigators incorrectly believe that videotaped evidence, or evidence presented by a famous local television reporter, is more persuasive to a jury than more "ordinary" evidence.
The Citizen Media Law Project tracks legal threats involving subpoenas to bloggers and other online content providers. According to its online database, more than 70 subpoenas have been issued to Internet publishers in the past few years, though the number is likely higher because many of these cases never become public. Often, these subpoenas seek the identities of anonymous commenters, but digital journalists, like video blogger Josh Wolf, have also been subpoenaed to testify before grand juries, and disclose the names of confidential sources as part of defamation or other civil lawsuits against themselves or third parties.
Unfortunately, there is no way of recording which subpoenas are issued to members of the news media on the national level, although the U.S. Department of Justice guidelines (28 C.F.R. § 50.10) do mandate that any federal subpoena issued to a member of the news media must be approved by the Attorney General.
In response to Freedom of Information requests that the Reporters Committee submitted to the Criminal Division of the Department of Justice in 2006, 2010 and 2011, the division reported that the Attorney General approved 89 requests for media subpoenas from 2001 to 2010, pursuant to the agency's guidelines. The responses listed the following numbers as their breakdown by year, although the Reporters Committee makes no guarantee that this response is accurate:
The subpoenas were for matters involving "extortion; unauthorized disclosure of grand jury information; private health information; classified information; insider trading; securities fraud; wire fraud; mail fraud; obstruction of justice; kidnapping; hostage taking; murder; threats to the President; identity theft; retaliation against witnesses; the leak of grand jury, sealed and classified information; and the manufacture and distribution of marijuana among other crimes," the Criminal Division reported. None of the 19 subpoenas issued in 2007, 2008 and 2009, and two of the five issued in 2010 involved the disclosure of confidential sources, the agency added. (This information is not available for the 65 federal subpoenas issued from 2001 to 2006.)
Most recently, the Department of Justice issued a subpoena in May 2011 for the testimony of New York Times reporter James Risen in the trial of Jeffrey Sterling, a former CIA operations officer accused of leaking classified information under the condition of anonymity to be published in newspaper articles and Risen's 2006 book "State of War: The Secret History of the CIA and the Bush Administration."
Specifically, the government alleges that Sterling leaked to Pulitzer Prize winner Risen information about a classified clandestine operational program to conduct intelligence activities related to the weapons capabilities of certain countries, including Iran. This information was the basis of a chapter in Risen's book about the CIA's unsuccessful attempts to infiltrate Iran's nuclear program dating back to the Clinton administration, according to the government.
In December 2010, a federal grand jury in Alexandria, Va., indicted Sterling of O’Fallon, Mo., on 10 counts, including unauthorized disclosure of national defense information and obstruction of justice. The government had issued a subpoena for Risen's testimony in that proceeding, but the trial judge granted his motion to quash without providing an explanation. A 2008 attempt to require Risen to testify before a previous grand jury investigating Sterling failed when that grand jury expired while Risen's motion to quash the subpoena was pending.
In a motion accompanying this most recent subpoena, federal prosecutors argued that Risen is an eyewitness to the alleged crimes, and no federal law exists that exempts a reporter from his or her obligation to testify. The government is also seeking non-confidential information from Risen that would not require revealing his source's identity, including establishing venue for certain counts, authenticating his book, and providing "necessary foundation to admit the defendant’s statements in the book."
Risen’s lawyer, Joel Kurtzberg, said his client will ask the judge to quash the subpoena. That motion is due June 21, 2011, and the judge is scheduled to hear arguments on it July 7.
Sterling is the fifth known leaker prosecuted by the Obama administration.
Among them is former National Security Agency official Thomas Drake, who faces a 10-count indictment after allegedly leaking government secrets to an unnamed reporter and then reportedly lying about doing so. The reporter is believed to be Siobhan Gorman, then of The Baltimore Sun, who wrote a series of articles about problems at the National Security Agency. Drake is scheduled to stand trial in Baltimore on June 13.
The other alleged leakers prosecuted by the Obama administration are Stephen Kim, a former Department of State analyst who allegedly leaked an intelligence report to an unidentified reporter; Bradley Manning, a U.S. Army private alleged to have leaked classified information to WikiLeaks; and Shamai Leibowitz, a former FBI linguist who was convicted in May 2010 of charges related to the leaking of classified information to an unidentified blogger and sentenced to 20 months in prison.
The Civil Division of the Department of Justice informed the Reporters Committee that it had not submitted any media subpoenas to the Attorney General for approval in recent years. In 2007, however, an Assistant Attorney General issued a subpoena to a member of the news media who cooperated with the request. (Under 28 C.F.R. § 50.10(e), if a member of the news media agrees to provide the material sought, and if that material has already been published or broadcast, a U.S. Attorney or Assistant Attorney General may issue the subpoena without authorization from the Attorney General.)
The Civil Rights Division indicated that it had submitted five media subpoenas to the Attorney General in recent years -- one in 2001; one in 2003; and three in 2006. Of these five requests, three were approved, and the disposition of the remaining two is unknown, the division reported.