Fourth Circuit rules reporter not protected from being compelled to testify in CIA leaks case

Nicole Lozare | Reporter's Privilege | News | July 19, 2013

The U.S. Court of Appeals in Richmond, Va. (4th Cir.) reversed a district court’s order that protected New York Times reporter James Risen from testifying in the government’s case against an ex-CIA official accused of violating the Espionage Act. The 118-page opinion, released Friday morning, is a complete rebuke to reporters claiming a privilege in criminal cases, and comes exactly one week after Attorney General Eric Holder called on legislators to pass a federal shield law to protect journalists from subpoenas.

The Fourth Circuit disagreed with the July 2011 order of U.S. District Judge Leonie Brinkema in Alexandria, Va., that Risen was protected by the reporter’s privilege and therefore will not have to testify in the trial of Jeffrey Sterling concerning the scope and source of the classified information that was allegedly disclosed to Risen.

In its opinion, the Court cited the 1972 Branzburg v. Hayes case, in which the Supreme Court ruled that journalists were not afforded a special privilege that exempted them from giving testimony before a court.

“So long as the subpoena is issued in good faith and is based on a legitimate need of law enforcement, the government need not make any special showing to obtain evidence of criminal conduct from a reporter in a criminal proceeding. The reporter must appear and give testimony just as every other citizen must. We are not at liberty to conclude otherwise,” the opinion stated, citing Branzburg.

The court also believed that Risen's testimony is essential in the prosecution of Sterling, who is accused of disclosing classified information about a botched operation to disable Iran's nuclear program. According to the government, Risen published some of that information in his 2006 book "State of War." In 2008, prosecutors subpoenaed the two-time Pulitzer Prize winner for the source of his information -- believed to be Sterling.

"Indeed, (Risen) can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury -- the illegal disclosure of classified, national security information by one who was entrusted to protect national security, but who is charged with having endangered it instead," the opinion stated. "The subpoena for Risen's testimony was not issued in bad faith or for the purposes of harassment ... Rather, the government seeks to compel evidence that Risen alone possesses -- evidence that goes to the heart of the prosecution."

The court also stated that Risen's argument that a number of states have shield laws in place "fails to persuade us that we can or should create a federal common-law privilege" and noted that Congress "has still not provided a reporter's shield by federal statute."

On Wednesday, a group of senators amended a federal shield law bill to incorporate recommendations by Holder following news that phone records of The Associated Press were subpoenaed as government lawyers continue to build a case against a suspected leaker of classified information.

In the opinion, the court also stated that it recognized the precedent it set in the 1986 case of LaRouche v. National Broadcasting, Co., which allows for the reporter's privilege in civil cases. In LaRouche, the Fourth Circuit ruled that journalists can only be compelled to testify if the information they have is relevant; if the information cannot be acquired using other means; and if there is a "compelling interest in the information."

The Court of Appeals also reversed the district court’s order suppressing the testimony of two unnamed witnesses who, it is believed, would have spared Risen from testifying. At issue was whether the government introduced the two witnesses too late in the discovery process, according to court documents. According to the Court of Appeals opinion, the District Court was "too severe" when it sanctioned the government by striking the two witnesses.

"We are convinced, moreover, that the Government has been adequately chastened, and that it will proceed more judiciously in the future," the opinion stated. "Further, as the Government is surely aware, any similar future transgression will not be forgiven as easily."

Reporters Committee statement on decision:

We're disappointed that just as we're making good progress with the Department of Justice and Congress on protecting the independence of reporters, the Fourth Circuit has taken such a narrow view of the First Amendment. As the dissenting judge said, "common sense tells us the value of the reporter’s privilege to journalism is one of the highest order."

Related Reporters Committee resources:

· NM&L: Judge quashes second subpoena to New York Times reporter in CIA leaker case