A divided federal appeals court in Virginia ruled today that Pulitzer-winning New York Times reporter Jim Risen must testify in the criminal trial of Jeffrey Sterling, a former CIA staffer who the government charged under the Espionage Act with leaking classified material to Risen for his 2006 book, “State of War: The Secret History of the CIA and the Bush Administration." The ruling, issued as a 118-page set of opinions, overturns a lower-court ruling and sets up a confrontation over the protections for journalists under the First Amendment.
Two members of a three-judge panel of the 4th Circuit ruled that the First Amendment provides no protection against testifying for reporters who receive unauthorized national security leaks. “Clearly, Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony,” wrote Chief Judge William Byrd Traxler Jr.
Judge Roger Gregory dissented, calling the majority's decision “sad” and a serious threat to investigative journalism.
“Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial,” Gregory wrote, per the New York Times. “The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society.”
Risen said he would appeal to the U.S. Supreme Court, and would go to prison rather than testify in the Sterling case. There are political aspects for the Obama Administration. Also from the NYT story:
The ruling raises an awkwardly timed question for Attorney General Eric H. Holder Jr., who has portrayed himself as trying to rebalance the department’s leak investigations in response to the furor over its aggressive investigative tactics, like subpoenaing Associated Press reporters’ phone records and portraying a Fox News reporter as a criminal conspirator in order to obtain a warrant for his e-mails.
Last week, Mr. Holder announced new guidelines for leak investigations that significantly tightened the circumstances in which reporters’ records could be obtained. He also reiterated the Obama administration’s proposal, made in response to the controversy, to revive legislation to create a federal media shield law that in some cases would allow judges to quash subpoenas for reporters’ testimony, as many states have.
“It’s very disappointing that as we are making such good progress with the attorney general’s office and with Congress, in getting them to recognize the importance of a reporter’s privilege, the Fourth Circuit has taken such a big step backwards,” said Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press.
Risen, a national security reporter for the New York Times, wrote the 2006 book separate from his work for the newspaper. Per the NYT, "a chapter in the book recounted efforts by the C.I.A. in the Clinton administration to trick Iranian scientists by having a Russian defector give them blueprints for a nuclear triggering device that had been altered with an error. The chapter portrays the operation as reckless and botched in a way that could have helped the Iranians gain accurate information."