A New York Times reporter will not have to reveal a confidential source when he testifies in the trial of a former CIA employee accused of leaking classified information, a federal judge ruled late last week regarding one of the highest-profile journalist subpoenas in recent years.
The U.S. government issued a trial subpoena to James Risen in May seeking his testimony against Jeffrey Sterling, a former CIA employee who allegedly disclosed top-secret information about a botched operation in Iran that Risen purportedly published in Chapter 9 of his 2006 book “State of War.” Prosecutors want Risen to identify his source for the information.
On Friday, U.S. District Judge Leonie Brinkema in Alexandria, Va., agreed to quash the subpoena in part, allowing Risen to keep his source secret and only 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. Risen has said he would testify to this basic information.
Brinkema’s opinion explaining the rationale for her decision is being reviewed for classified material before it is made public, a process that could take a few weeks.
This is the third subpoena the U.S. Department of Justice has issued to Risen and the second Brinkema has quashed. The government issued him a grand jury subpoena in 2008, which expired when the grand jury's term ended before he had to testify. Brinkema quashed a renewed grand jury subpoena in November 2010, holding that the government’s need for the information was outweighed by Risen’s interest in keeping his sources confidential.
"I think this is an important victory for the First Amendment and for investigative reporting everywhere," said Joel Kurtzberg, Risen’s attorney. "I am not aware of any other case this high profile where a judge has quashed a subpoena to a reporter in federal court, at both the grand jury and criminal trial levels, and I think it's a significant decision for that reason."
At a July 7 hearing on Risen's motion to quash, Kurtzberg said the government could not fulfill its burden of proving Risen’s testimony was critical or necessary to its case, a factor for courts to consider when a journalist invokes his First Amendment-based reporter's privilege to refuse to disclose confidential sources and other information obtained during the newsgathering process.
“A reporter’s testimony should be a last resort, not the first resort,” Kurtzberg told Brinkema at last month's hearing. "If they want Mr. Risen’s testimony, their burden is to show you they have no other reasonable alternative."
Prosecutors said at the hearing the court needed to weigh the government’s “compelling interest” in the justice system and the jury's right to hear every person’s testimony. They have said Risen's testimony would simplify the trial and clarify matters for the jury.
Lucy A. Dalglish, the executive director of the Reporters Committee for Freedom of the Press, said in an article first published Friday on the website of the New York Times the ruling “sets a very welcome precedent” because it demonstrated that judges could balance the public’s interest in investigative reporting against claims by prosecutors that forcing a reporter to testify was necessary to protect national security. “It proves that judges can look at these cases and make decisions about whether or not subpoenas are reasonable,” Dalglish said. “It shows that judges can act independently and are not just going to rubber-stamp a subpoena that comes out of a prosecutor’s office and approve it just because they say they have to have it for some national security reason. It’s really remarkable.”
In her ruling quashing the grand jury subpoena, a heavily redacted version of which became public in June, Brinkema criticized the government’s attempt to force Risen to testify, noting officials already believed they had enough evidence to indict Sterling without subpoenaing Risen. She also noted Risen would likely have a more difficult time quashing a trial subpoena because the government had a higher burden of proof at trial: guilt beyond a reasonable doubt.
Sterling is one of five alleged leakers to be prosecuted by the Obama administration. The grand jury investigations for most of them, including Sterling, were launched by the previous administration. In December, a federal grand jury indicted him on 10 counts, including unauthorized disclosure of national defense information and obstruction of justice.
"State of War" details a highly flawed and mismanaged operation in Iran, and is one of many instances in which Risen has brought government wrongdoing to the public’s attention, according to Risen's motion to quash the subpoena.
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 Sterling had a grudge against the CIA and believed the agency discriminated against him because of his race.