U.S. files unopposed motion to seal parts of oral argument in Sterling, Risen appeals

Chris Healy | Reporter's Privilege | News | April 10, 2012

Department of Justice attorneys have filed an unopposed motion to close to the public parts of the upcoming oral argument concerning the Espionage Act prosecution of former CIA analyst Jeffrey Sterling and the related subpoena of New York Times reporter James Risen.

Responding to a request from the U.S. Court of Appeals in Richmond, Va. (4th Cir.), the government's motion states that the parties discussed the issue and have agreed that some parts of the argument should be sealed. The oral argument is scheduled for May 18.

The appeal involves three issues. The first is whether Risen has a constitutional or common law privilege protecting him from testifying as to the identity of a confidential source used in his 2006 book "State of War." The lower court found that such a constitutional privilege exists and that it protected Risen.

On this issue, the government and parties agreed that there will be no need to discuss classified materials, and that the oral argument should be open to the public. "Indeed, neither Risen nor his counsel is cleared to receive classified information," according to the government's motion.

The second and third issues in the case involve the district court's decision not to allow two government witnesses to testify because of a discovery violation, and the court's requirement that the government disclose the identifies of witnesses to the defendant and the jury, respectively.

The government has requested that oral argument concerning the second issue be closed in its entirety, because "the issue requires the parties to discuss classified matters with the Court." On the third issue, the government stated that it did not anticipate needing to discuss classified information, but that if the judges may find it necessary to consult such information then the court will need to be closed.

Sterling is accused of violating the Espionage Act by disclosing confidential information. Risen was subpoenaed in 2008 by the government to identify the confidential source cited in a chapter of his book. The source provided details about a classified government program involving efforts to prevent Iran from obtaining nuclear weapons. The operation was reportedly a failed attempt to provide Iranian scientists with flawed blueprints that would set back their efforts at developing their nuclear program, according to Risen's brief in the case.