U.S. appeals judge's decision to limit Risen testimony

J.C. Derrick | Reporter's Privilege | Feature | October 20, 2011

Federal prosecutors appealed on Wednesday a federal district court judge's decision to limit the scope of a New York Times reporter's testimony in the trial of a former CIA officer accused of leaking classified information.

The prosecution's appeal to the U.S. Court of Appeals in Richmond, Va. (4th Cir.), further delays the trial of Jeffrey Sterling, which was scheduled to start Monday.

Prosecutors are challenging U.S. District Court Judge Leonie Brinkema's July decision to deny the government's motion for reconsideration and the order excluding certain testimony from Times reporter James Risen. The second part of the appeal involves an order excluding the testimony of two other witnesses who have not been named.

On July 29, Brinkema ruled that Risen would not have to reveal his confidential source in the criminal case against Sterling, who is charged with 10 federal crimes ranging from disclosure of national defense information to mail fraud. Brinkema's order restricted Risen's testimony to matters of his authorship and the accuracy of his 2006 book, "State of War," which detailed the United States' failed plan to derail Iran's nuclear program.

Since the disputed material was not published in The Times, the newspaper is not directly involved in Risen's defense. However, Times assistant general counsel George Freeman said, "We certainly hope that the trial judge's opinion doesn't get reversed." Freeman said there was not a "great need" for Risen's testimony.

Risen could face jail time and/or fines if the Fourth Circuit rules that he must reveal his source and he continues to refuse. Federal prosecutors relied on the 1972 U.S. Supreme Court decision Branzburg v. Hayes to argue in favor of Risen revealing his source. In Branzburg v. Hayes, the Court ruled that reporters have no First Amendment right to refuse to answer all questions before grand juries if they actually witnessed criminal activity. However, in the years following Branzburg, federal courts nationwide interpreted the case to give rise to a qualified privilege that typically balances a reporter’s right to protect the sources against the government’s need for the information.

In the Fourth Circuit, this balancing test requires a person seeking confidential information, including the identity of a source, from a journalist who has invoked the reporter’s privilege to protect information obtained under a promise of confidentiality to show that there is a compelling interest in the information sought, and that such information is relevant to the claim and unobtainable by alternative means.

Brinkema found that Risen’s need to protect his source outweighed the government’s need to establish its case. That is, while Risen’s testimony is indeed relevant, prosecutors failed to show a compelling interest in it and an inability to obtain the information elsewhere, her opinion said.

Congress has been considering versions of a federal shield law to protect journalists from being forced to reveal their sources since 2004, but its current form includes exemptions for national security issues.