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Classified portions of oral arguments before the U.S. Court of Appeals in Richmond, Va. (4th Cir.) will be closed to the public in the government's case against ex-CIA official Jeffrey Sterling, who is charged with violating the Espionage Act for disclosing classified information. Only arguments pertaining to the subpoena of New York Times reporter James Risen will be heard in open court.
Earlier this month, Department of Justice attorneys filed a motion to seal parts of the oral argument that require the discussion of classified information. The motion was agreed upon by both sides, but the court's order seals more of the hearing than the government had originally requested.
The Fourth Circuit will consider three issues in this appeal: the lower court's decision protecting Risen from revealing confidential sources, the decision to disallow testimony of two prosecution witnesses and an order requiring the government to disclose the identity of confidential witnesses to the jury and the defense.
In the unopposed motion to seal, the government asked the court to close the portion of the argument devoted to the discovery issue. With regard to the witness security issue, the government wrote that it did "not foresee a need to discuss classified information in open court," leaving the decision up to the court. The court decided to close this part of the argument.
The government's prosecution of Sterling, who worked for the CIA from 1993 until he was fired in 2002, has reopened the legal debate surrounding compelled disclosure by journalists of confidential sources and materials obtained while reporting on matters of public interest.
Sterling is charged with 10 federal crimes including violating the Espionage Act, mail fraud and obstruction of justice. Sterling, who is black, complained about racial discrimination at the agency before being fired.
The federal indictment alleges the former agent leaked classified information due to these resentments.
Risen was subpoenaed in 2008 to reveal the confidential source used in his book "State of War: The Secret History of the CIA and the Bush Administration," which highlights issues of wiretapping and data mining during the Bush Administration. Sterling is alleged to be the source of information in a chapter of Risen's book detailing a failed CIA operation to disrupt Iran's nuclear program. But in July, U.S. District Judge Leonie Brinkema quashed the prosecution's subpoena of Risen. Brinkema found a constitutional privilege existed that protected the journalist from revealing his source, limiting Risen's testimony to include the accuracy of his reporting. Prosecutors appealed this decision in October.
In 1972, the U.S. Supreme Court decision in Branzburg v. Hayes held that reporters had no First Amendment privilege from testifying about confidential sources before a grand jury. But since then courts addressing the issue have interpreted the ruling to establish a qualified privilege protecting the disclosure of confidential sources, where the reporter's interest in confidentiality outweighs against the party's interest seeking the information.
Generally, prosecutors are required to disclose the identity of their witnesses to the defense, to allow the defense the opportunity to prepare for cross-examination of witnesses. But, under the Classified Information Procedures Act, the government is allowed to withhold disclosure of some classified information if it would jeopardize national security. The district court required the government to disclose the true identities of some witnesses to the jury and the defense, but the prosecution has appealed this requirement to protect the identities of covert CIA-officials that may testify in the case.
The oral argument is scheduled for May 18 at the U.S. Court of Appeals in Richmond, Va.
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