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New York Times reporter asks judge to quash subpoena

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  1. Protecting Sources and Materials
New York Times investigative reporter James Risen officially asked a federal judge yesterday to quash a government-issued subpoena for his…

New York Times investigative reporter James Risen officially asked a federal judge yesterday to quash a government-issued subpoena for his testimony about a confidential source in the criminal trial of a former CIA official accused of leaking classified information.

Risen’s lawyers filed the motion with U.S. District Judge Leonie Brinkema in Alexandria, Va., arguing the government’s attempts to force Risen to testify in the case of Jeffrey Sterling violate the constitutionally based reporter’s privilege to refuse to disclose confidential sources and other information obtained during the newsgathering process.

Because prosecutors cannot show that Risen’s testimony is critical or necessary to their case at trial, they failed to meet the standard required to overcome a journalist's privilege from compelled disclosure of confidential sources, according to the motion. Moreover, the subpoena is an “effort to harass/intimidate a vocal critic of the government,” it alleges.

“The Government’s current demands for Mr. Risen’s testimony are a serious threat, not only to Mr. Risen’s constitutional rights, but also to his livelihood,” the motion says.

Sterling is charged with giving Risen information on a classified CIA operation intended to injure Iran’s nuclear program, which Risen reportedly published in his 2006 book, "State of War." In December, a federal grand jury in Alexandria indicted Sterling on 10 counts, including unauthorized disclosure of national defense information and obstruction of justice.

"State of War" details the highly flawed and mismanaged operation in Iran, just one of many instances in which Risen has brought government wrongdoing to the public’s attention, according to the documents filed yesterday.

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 he had a grudge against the CIA and believed the agency discriminated against him because of his race.

This is the third subpoena the U.S. Department of Justice has issued to Risen. The government issued him a grand jury subpoena in 2008, which expired, and Brinkema quashed a renewed grand jury subpoena in late 2010.

The Department of Justice issued the most recent subpoena on May 23. Prosecutors also filed a motion in support of the subpoena, anticipating Risen, a two-time Pulitzer-Prize winning journalist and author of several books, 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 prosecutors' motion says.

However, defense lawyers point out that the government concedes it has other admissible evidence to support its allegations. Rather than proving that Risen’s testimony is critical or necessary for their case, prosecutors instead merely state that his testimony would simplify the trial and clarify matters for the jury, Risen's attorneys argue.

Risen has repeatedly said he will not reveal his confidential sources. If he is forced to testify, he could become the first journalist to be jailed for refusing to testify in several years. Josh Wolf, a videographer and blogger, spent more than seven months in federal prison after refusing to testify and turn over video footage related to a protest that turned violent in California in June 2005. In a more high-profile case, New York Times reporter Judith Miller was jailed for 85 days in fall 2004 after refusing to testify about conversations with a confidential source related to the leak investigation into CIA officer Valerie Plame.

In an affidavit filed with his motion to quash, Risen explained his more than 30 years of journalistic experience, which includes covering intelligence and national security for The New York Times since 1998. He said he has relied on confidential sources many times for articles that revealed official wrongdoing to the public.

He cites "State of War" as an example, saying it “included explosive revelations about a series of illegal or potentially illegal actions taken by President Bush." These included the domestic wiretapping program, government-influenced torture on detainees in secret prisons and officials ignoring signs Iraq did not have weapons of mass destruction, he said.

Risen also said he chose to publish information about Operation Merline, the 2000 intelligence operation in Iran, in his book because its newsworthiness outweighed its potential harm to national security.

“I take very seriously my obligations as a journalist when reporting about matters that may be classified or may implicate national security concerns,” Risen said in his affidavit. “If I believe that the publication of the information would cause real harm to our national security, I will not publish a piece. I have found, however, that all too frequently, the government claims that publication of certain information will harm national security, when in reality, the government’s real concern is about covering up its own wrongdoing or avoiding embarrassment.”

Risen said he will testify on information that is already known and published, including: that he wrote a particular book or article; that what he wrote is accurate; that statements cited to an unnamed source are in fact from an unnamed source; and that statements cited to an identified source are in fact from the identified source.

He said he will not testify to any other questions.

Defense lawyers also re-submitted declarations from several well-known journalists that were originally filed as part of the 2008 subpoena battle. The journalists, who attested to the importance of confidential sources in American journalism, include Scott Armstrong and Carl Bernstein, former Washington Post reporters, and Jack Nelson of the Los Angeles Times, among others.

Sterling's opposition to the government's motion to admit Risen's testimony was also filed yesterday. Because the court does not know the substance of Risen's testimony, granting a motion to admit it is procedurally improper, Sterling argued.

A hearing on the subpoena and motion to quash is set for July 7.