Judge explains decision to quash Risen subpoena

Clara Hogan | Reporter's Privilege | Feature | August 4, 2011

New York Times reporter James Risen will not need to reveal his confidential source in the leak trial of a former CIA officer because the U.S. government failed to show a compelling interest in his testimony and an inability to find the information elsewhere, a federal judge said in an opinion made public Wednesday.

“A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” U.S. District Judge Leonie Brinkema in Alexandria, Va., said in her opinion. “The government must establish that there is a compelling interest for the journalist’s testimony, and that there are no other means for obtaining the equivalent of that testimony.”

Brinkema last Friday largely quashed the trial subpoena against Risen, allowing him to keep his source secret and only testify as to the accuracy of his reporting. The opinion explaining the rationale for her decision was not immediately made available because it first had to undergo a declassification process. The New York Times first posted the opinion online Wednesday evening.

The opinion thoroughly discusses the standard for federal courts to determine whether to quash a subpoena to a journalist. Under a First Amendment-based qualified reporter’s privilege to refuse to disclose confidential sources and other information obtained during the newsgathering process, courts must balance the reporter’s need to protect a source against a prosecutor’s need to establish his case, Brinkema said.

The U.S. government issued the trial subpoena to Risen in May seeking his testimony against Jeffrey Sterling, a former CIA employee who allegedly disclosed top-secret information about a botched intelligence operation in Iran. Risen purportedly published some of that information in his 2006 book “State of War.” Prosecutors wanted Risen to identify his source for the information.

Brinkema rejected the government's contention that the Constitution does not shield a journalist from compelled disclosure of information, and instead adopted and applied a three-part balancing test established in 1986 by the U.S. Court of Appeals in Richmond (4th Cir.), the federal appellate court with jurisdiction over trial courts in Virginia. While Brinkema said Risen’s testimony is indeed relevant, she found that government attorneys failed to show equivalent information could not be presented through alternative means and failed to prove they had a compelling interest in the information.

Brinkema noted the government has numerous telephone records, email messages, computer files and other testimony that “strongly indicates that Sterling was Risen’s source.”

The government argued it could not use the testimony of a former intelligence official who was reportedly told by Risen that Sterling was the source because it would be inadmissible hearsay evidence, testimony about what a person not appearing in court told the testifying witness. However, Brinkema found that, while such testimony may typically be considered hearsay, the official’s testimony would be admissible under an exception to the hearsay rule because Risen would be unavailable and the information would go against Risen’s penal interest because the receipt of classified information without authorization is a federal felony.

Despite Brinkema's statement that Risen’s alleged unauthorized receipt of classified information is a crime, no journalist has been prosecuted for merely receiving classified information. Moreover, courts have found that recipients have a First Amendment defense to the charge in some contexts.

In addition to its failure to demonstrate that it could not obtain the desired information through any other means, the government did not show that Risen’s testimony is necessary for its case, but instead merely claimed it would “simplify the trial and clarify matters for the jury," Brinkema said.

“If making the trial more efficient or simpler were sufficient to satisfy the . . . compelling interest factor [of the balancing test], there would hardly be a qualified reporter’s privilege,” Brinkema said.

The judge also rejected the government’s claim that Risen could testify to details of his interactions with his confidential source without revealing the source's identity, including information about where and when the disclosure took place.

“Courts have long held that the reporter’s privilege is not narrowly limited to protecting the reporter from disclosing the names of confidential sources, but also extends to information that could lead to discovery of a source’s identity,” she said.

This was the third subpoena the U.S. Department of Justice issued to Risen and the second Brinkema quashed. The government issued him a grand jury subpoena in 2008, which expired when the grand jury's term ended before he had to testify. Brinkema quashed a renewed grand jury subpoena last November, holding that the government’s need for the information was outweighed by Risen’s interest in keeping his sources confidential.

"State of War" details a highly flawed and mismanaged operation in Iran and is one of many instances in which Risen has brought government wrongdoing to the public’s attention, according to Risen's motion to quash the subpoena.

Sterling worked for the CIA from May 1993 until he was fired in January 2002. Prosecutors allege Sterling, who is black, leaked information to Risen because Sterling had a grudge against the CIA and believed the agency discriminated against him because of his race.