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In Major Ruling, Court Orders Times Reporter to Testify Court Tells Reporter to Testify in Case of Leaked C.I.A. Data
(about 9 hours later)
WASHINGTON — In a major decision about press freedoms, a divided federal appeals court on Friday ruled that James Risen, an author and a reporter for The New York Times, must testify in the criminal trial of a former Central Intelligence Agency official charged with providing him with classified information. WASHINGTON — In a major ruling on press freedoms, a divided federal appeals court on Friday ruled that James Risen, an author and a reporter for The New York Times, must testify in the criminal trial of a former Central Intelligence Agency official charged with providing him with classified information.
In a 118-page set of opinions, two members of a three-judge panel for the United States Court of Appeals for the Fourth Circuit, in Richmond, Va. — the court whose decisions cover the Pentagon and the C.I.A. — ruled that the First Amendment provides no protection to reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking to them. In a 118-page set of opinions, two members of a three-judge panel for the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled that the First Amendment does not protect reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking to them. A district court judge who had ruled in Mr. Risen’s case had said that it did.
“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., who was joined by Judge Albert Diaz. “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., who was joined by Judge Albert Diaz in Friday’s ruling.
Mr. Risen has vowed to appeal any loss at the appeals court to the Supreme Court, and to go to prison rather than testify about his sources. On Friday, he referred a request to comment to his lawyer, Joel Kurtzberg, who wrote in an e-mail: “We are disappointed by and disagree with the court’s decision. We are currently evaluating our next steps.” Mr. Risen has vowed to go to prison rather than testify about his sources and to carry any appeal as far as the Supreme Court. But some legal specialists said an appeal to the full appeals court was a likely first step. Mr. Risen referred a request to comment to his lawyer, Joel Kurtzberg, who wrote in an e-mail: “We are disappointed by and disagree with the court’s decision. We are currently evaluating our next steps.”
Judge Roger Gregory, the third member of the panel, filed a vigorous dissent, portraying his colleagues’ decision as “sad” and a serious threat to investigative journalism.Judge Roger Gregory, the third member of the panel, filed a vigorous dissent, portraying his colleagues’ decision as “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,” he wrote. “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.”“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,” he wrote. “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.”
The Justice Department offered no immediate comment. 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. Friday’s ruling establishes a precedent that applies only to the Fourth Circuit, but that circuit includes Maryland and Virginia, where most national security agencies like the Pentagon and the Central Intelligence Agency are. As a result, if it stands, it could have a significant impact on investigative journalism about national security matters.
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 has long been unclear whether the Constitution protects reporters from being forced to testify against their sources in criminal trials. The principal Supreme Court precedent in that area, which is more than 40 years old, concerns grand jury investigations, not trials, and many legal scholars consider its reasoning to be ambiguous.
“We agree with the decision,” said Peter Carr, a Justice Department spokesman. “We are examining the next steps in the prosecution of this case.”
The ruling was awkwardly timed for the Obama administration.
Attorney General Eric H. Holder Jr. has portrayed himself as trying to rebalance the department’s approach to 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 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.“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.
Mr. Risen is a national security reporter for The Times, but the case revolves around material he published in his 2006 book, “State of War,” not in the newspaper. 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.Mr. Risen is a national security reporter for The Times, but the case revolves around material he published in his 2006 book, “State of War,” not in the newspaper. 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.
In December 2010, a former C.I.A. officer, Jeffrey Sterling, was accused of being Mr. Risen’s source and indicted on Espionage Act charges. His is one of seven leak-related cases brought so far by the Obama administration, more than twice as many as under all previous presidents combined. In December 2010, a former C.I.A. officer, Jeffrey Sterling, was accused of being Mr. Risen’s source and indicted on Espionage Act charges. His is one of seven leak-related cases brought so far by the Obama administration, compared with three under all previous presidents combined.
The appeals court’s move, which came more than a year after it heard oral arguments in the case, reversed a ruling by Judge Leonie M. Brinkema of Federal District Court in Alexandria, Va., who had sharply limited what prosecutors could ask Mr. Risen about his sources. She had written that he was protected by a limited “reporter’s privilege” under the First Amendment. The appeals court’s ruling, which came more than a year after it heard oral arguments in the case, reversed a decision in 2011 by Judge Leonie M. Brinkema of Federal District Court in Alexandria, Va., who had sharply limited what prosecutors could ask Mr. Risen about his sources. She had written that he was protected by a limited “reporter’s privilege” under the First Amendment, but the Obama administration argued that such a reporter’s privilege did not exist, and appealed.
“A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” she wrote.
Her ruling was hailed by press freedom advocates as the first time that a judge had quashed a subpoena requiring a journalist to testify about sources in a national security case. But the Obama administration argued that such a reporter’s privilege did not exist under First Amendment law, and appealed.
A coalition of more than two dozen media organizations, including The Times and Fox News, filed a friend-of-the-court brief in the case arguing that a qualified reporter’s privilege — allowing judges to protect reporters from testifying under some circumstances — was crucial for the “dissemination of news and information to the public.”A coalition of more than two dozen media organizations, including The Times and Fox News, filed a friend-of-the-court brief in the case arguing that a qualified reporter’s privilege — allowing judges to protect reporters from testifying under some circumstances — was crucial for the “dissemination of news and information to the public.”
On Friday, Judges Traxler and Diaz agreed with the Obama administration that no such protections for reporters exist in federal law. On Friday, Judges Traxler and Diaz agreed with the Obama administration.
“There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source,” Judge Traxler wrote.“There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source,” Judge Traxler wrote.
The majority based its ruling on a 1972 Supreme Court decision, Branzburg v. Hayes, which rejected an effort by a reporter to avoid testifying before a grand jury. Mr. Risen’s lawyers had argued that the 5-4 ruling was ambiguous and left room open for Judge Brinkema to shield him from testifying in the criminal trial. The appeals court did not agree. The majority based its ruling on a 1972 Supreme Court decision, Branzburg v. Hayes, which rejected an effort by a reporter to avoid testifying before a grand jury. Mr. Risen’s lawyers had argued that the 5-4 ruling was ambiguous and left room open for Judge Brinkema to shield him from testifying in the criminal trial. In his dissent on Friday, Judge Gregory said that he would recognize a qualified reporter’s privilege in criminal cases. He also argued that prosecutors had enough other evidence to make their case without Mr. Risen’s testimony.
Like the reporter in the 1972 case, Mr. Risen “can provide the only firsthand account of the commission of a most serious crime indicted by the grand jury — the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead,” Judge Traxler wrote. “The subpoena for Risen’s testimony was not issued in bad faith or for the purposes of harassment.” “Whatever the limits of who may claim reporter’s privilege, it is clear that Risen — a full-time reporter for a national news publication, The New York Times — falls into the category of people who should be eligible to invoke the privilege,” he wrote.
The court also rejected Mr. Risen’s arguments that it should recognize a common-law reporter’s privilege for criminal cases, as exists in some civil litigation contexts. But even if there were one, the judges said, they would still reverse the district court’s ruling because the government had a “compelling interest” in his testimony; prosecutors have said there is no other way to gain the information they said they needed to convict Mr. Sterling. Their reasoning suggested that even if there were a federal media shield law, Mr. Risen still might be forced to testify. Judge Traxler was appointed by President Bill Clinton and Judge Diaz by President Obama. Judge Gregory was given a recess appointment by Mr. Clinton, and then renominated by President George W. Bush.
“Risen is the only eyewitness to the crime,” Judge Traxler wrote. “He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally disclosed, classified information.” Over the past three decades, nearly two dozen journalists have been jailed in the United States for refusing to testify or disclose sources or other types of reporting information, according to a list maintained by Reporters Committee for Freedom of the Press.
In his dissent, Judge Gregory said that he would recognize a qualified reporter’s privilege in criminal cases, including cases related to national security, depending on the newsworthiness of the information and the potential harm its dissemination could cause. He also argued that prosecutors had enough other evidence to make their case without Mr. Risen’s testimony. In 2005, a New York Times reporter, Judith Miller, was jailed for 85 days for refusing to testify about sources in the investigation into who leaked the identity of a C.I.A. officer, Valerie Plame Wilson. She was released after her source, I. Lewis Libby, Vice President Dick Cheney’s chief of staff, released her from the confidentiality agreement, and she testified before a grand jury.
“Whatever the limits of who may claim reporter’s privilege, it is clear that Risen – a full-time reporter for a national news publication, The New York Times – falls into the category of people who should be eligible to invoke the privilege,” he wrote.
The court also reversed Judge Brinkema’s decision to exclude two other witnesses from the trial.
Nearly two dozen journalists have been jailed — some for only a few hours, some for months — in the United States for refusing to testify or disclose sources or other types of reporting information over the past three decades, according to a list maintained by Reporters Committee for Freedom of the Press. But it has been nearly seven years since the last time that happened.
In 2006, Josh Wolf, a freelance video blogger, was jailed on a contempt order for refusing to turn over a video that prosecutors believed showed protesters damaging a police car. Around the same time, a judge threatened to send two reporters for The San Francisco Chronicle to prison for refusing to identify who had leaked them transcripts of grand-jury testimony by prominent athletes in the Balco steroids investigation, but that case was made moot when their source came forward.
In 2005, a New York Times reporter, Judith Miller, was jailed for 85 days for refusing to testify about sources in the investigation into who leaked the identity of a C.I.A. officer, Valerie Plame Wilson. She was released after her source, I. Lewis Libby, Vice President Dick Cheney’s chief of staff, released her from the confidentiality agreement and she testified before a grand jury.