New York Times reporter subpoenaed by U.S. government

Clara Hogan | Reporter's Privilege | Feature | May 24, 2011

The U.S. Department of Justice issued a subpoena yesterday for the testimony of a New York Times reporter in the trial of Jeffrey Sterling, a former CIA operations officer accused of leaking classified information, highlighting a trend of government attempts to use journalists’ testimony in cases against government employees who reveal government information in exchange for anonymity.

Federal prosecutors also filed a motion late Monday in support of the subpoena, anticipating that Pulitzer Prize-winner James Risen would seek to have the subpoena quashed. “His testimony is directly relevant to, and powerful evidence of, facts that are squarely at issue in this trial -- including the identity of the perpetrator,” the motion says.

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.

Procedurally, the government's decision to compel Risen's testimony by filing a motion in limine -- a tool generally used to focus the evidence to be used at trial -- along with a subpoena is unusual. Department of Justice spokeswoman Laura Sweeney could not be reached for comment on the move.

Sterling is accused of giving Risen national security 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.”

Risen’s lawyer, Joel Kurtzberg, confirmed to The Associated Press that Risen will ask a judge to quash the subpoena.

Sterling, who worked at the CIA from 1993 to 2002, had conflicts with the agency, including the filing of a racial discrimination complaint. The indictment alleges these issues served as his motivation for leaking the information.

In its motion, the U.S. government argues 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 question here, therefore, is not whether the testimony is probative of factual issues that will be before the jury, but whether there exists a reporter’s privilege -- either under the First Amendment or common law -- that exempts this eyewitness from being called, like any other citizen, to provide relevant facts under oath to the jury . . . the answer is no,” the government lawyers said in the brief.

Indeed, although 40 states and the District of Columbia have shield laws that exempt journalists from having to reveal their confidential sources, there is no such statute at the federal level. However, some federal courts have interpreted the Supreme Court's 1972 Branzburg v. Hayes decision as providing a qualified privilege protecting reporters against compelled disclosure of anonymous sources, especially in civil cases.

According to the motion, 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." However, many federal courts extend the First Amendment-based reporter's privilege to unpublished, non-confidential information obtained while newsgathering.

Risen and other reporters have relied on the reporter’s privilege before to avoid giving up source names. He and four other reporters were held in contempt of court in 2004 for refusing to reveal confidential sources in a lawsuit against the government brought by former Los Alamos scientist Wen Ho Lee. In that case, a judge ordered a fine of $500 per day until they complied with the order. The five news organizations involved -- The New York Times, ABC News, The Associated Press, the Los Angeles Times and The Washington Post -- eventually agreed to pay an unprecedented $750,000 as its share of a settlement in exchange for getting the contempt charges dropped.

The case against Sterling represents a trend of the Department of Justice filing criminal charges against those who leak government secrets. 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 later 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.