A New York Times reporter and an alleged CIA leaker fired back in court on Wednesday at the prosecution's request that a federal judge reconsider her decision to protect the reporter from disclosing his confidential source in court.
Both James Risen and Jeffrey Sterling believe further review of the issue is not necessary and filed documents opposing the prosecution's motion for "clarification and reconsideration" of the judge's prior order, which largely quashed a subpoena for Risen's testimony.
"The government points to no new facts or law in its motion that would justify reconsideration, and its attempt to remedy this failure in a supplemental filing still fails to raise any new facts that alter the court's earlier analysis," Risen's attorneys wrote.
The government filed this motion for reconsideration after Sterling alleged in recently filed court documents that former Senate Intelligence Committee staffer Vicki Divoll was the source of the leaked information — not the ex-CIA agent. The governnment countered that its interest in Risen's eyewitness testimony is even more compelling in light of the defense plan "to point the finger at as many other individuals as possible, in a scattershot effort to manufacture reasonable doubt as to the identity of the individual who leaked national defense information to Mr. Risen."
Risen, who covers national security issues for The New York Times, was subpoenaed in May to testify in the criminal trial of Sterling, a former CIA agent who is accused of leaking national security secrets.
In a July 29 order, U.S. District Judge Leonie M. Brinkema, in Alexandria, Va., severely narrowed the scope of Risen's testimony to questions regarding his authorship and the accuracy of his 2006 book "State of War." The government alleges that a chapter in the book includes top-secret information about a botched operation intended to injure Iran’s nuclear program that Sterling leaked to Risen.
Risen's attorneys reiterated in Wednesday's response that he is protected by the First Amendment-based reporter's privilege. Sterling's lawyer, Edward B. McMahon, echoed similar sentiments, asserting that disagreement with the court's ruling is not a reason for reconsideration.
"The government is so fixated on compelling Mr. Risen's testimony — or perhaps jailing him — that it is willing to concede that its case is weak and that it needs Mr. Risen (to whom it has never spoken) to come to the rescue," McMahon said.
Risen, a two-time Pulitzer Prize winner, has been resisting efforts to get him to reveal his source since 2008.
Risen's attorneys argued that the government did nothing more than "rehash" prior arguments with its latest request.