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Attorney general revokes initial approval of subpoena for CBS journalist Justice Dept. won’t compel Times reporter to divulge source in leak case
(about 1 hour later)
Attorney General Eric H. Holder Jr. has withdrawn his initial approval to subpoena a CBS producer to appear as a witness in a terrorism trial in New York after learning that the journalist would contest the effort to secure his testimony, according to U.S. officials. Attorney General Eric H. Holder Jr. has decided he will not force a New York Times reporter to reveal his confidential source in a high-profile media case that has pitted the Obama administration against the press for years, according to a person familiar with the decision.
Preet Bharara, the U.S. attorney for the Southern District of New York, had asked Holder to approve a subpoena for Richard Bonin, a longtime producer for “60 Minutes,” to testify in a trial of two men accused in the 1998 bombings of two U.S. embassies in East Africa by al-Qaeda. A federal judge had set a Tuesday deadline for the Justice Department to say whether it intended to compel Times reporter James Risen to identify his source in the trial of Jeffrey Sterling, a former CIA official who was accused of leaking classified information. With that deadline approaching, Holder has told prosecutors that, while they may still request a subpoena of Risen, he cannot be required to reveal any information about the identity of his source, according to the person familiar with Holder’s decision, who spoke on condition of anonymity.
In a memo to Holder, Bharara indicated that Bonin would be willing to testify in the trial, set to start next month, if subpoenaed by the Justice Department, according to the officials, who spoke on the condition of anonymity to discuss internal deliberations. The U.S. attorney for the Eastern District of Virginia, which is prosecuting the case, declined to comment, as did a Justice Department spokesman. Edward B. MacMahon, Sterling’s attorney, said he had not been informed of any decisions about Risen, but the revelation, if true, was troubling.
Holder then gave Bharara the green light to subpoena Bonin. The Justice Department approves many subpoenas from U.S. attorneys in cases where potential witnesses indicate they will testify or turn over materials if subpoenaed. But a “60 Minutes” spokesman has said that Bonin was not approached by prosecutors and did not agree to testify. “We’re waiting for the formal responses ordered by the court, but if the result is that the attorney general doesn’t want the issue that his own Department of Justice fought for all the way to the U.S. Supreme Court, then three years of Mr. Sterling’s life have been wasted in litigation” MacMahon said.
To issue a subpoena to a journalist who did not want to testify threatened to embroil the Justice Department in a free-press controversy that it had no desire to pursue, the officials said. The Risen case had become a major flashpoint between the Justice Department and press advocates. Over nearly six years, the Obama administration has has prosecuted eight leak cases, more than were pursued under all previous administrations combined.
The subpoena request was first reported by the New York Times. The possibility that a reporter could have been compelled to divulge a source in a leak case embroiled the Justice Department in a free-press controversy and sparked a prolonged court battle.
A spokesman for the Justice Department declined to comment. Sterling is accused of being a source in Risen's book, “State of War,” in which the reporter revealed an effort by the CIA to sabotate Iran’s nuclear weapons program.
“At no time did Richard Bonin speak to anyone from the prosecutor’s office,” said Kevin Tedesco, a spokesman for CBS News’ “60 Minutes.” “From the outset, CBS has attempted to dissuade Justice from issuing a subpoena to Richard Bonin. At no time did anyone at CBS indicate that the subpoena was pro forma and that he would testify if one were issued.” If prosecutors subpoena Risen, it would only be to confirm information: such as he wrote the book, he reported information from a confidential source and he had an agreement not to reveal the source, said the person familiar with the matter.
Bonin’s potential testimony did not involve information about confidential sources and was not sparked by a leak investigation, officials said. The administration has pursued current and former government officials suspected of leaking classified information to the news media. The Obama administration has prosecuted eight leak cases, more than were pursued under all previous administrations combined. Matt Zapotosky contributed to this report.
Bharara expected Bonin to testify about his contacts 16 years ago with Khaled al-Fawwaz, who has been accused of being a London-based media adviser and liaison for Osama bin Laden. Bonin was unsuccessful in his effort to secure an interview with bin Laden through Fawwaz.
Justice officials, including Holder, approved the subpoena request from Bharara several weeks ago, but Holder revoked his approval in recent days after learning that Bonin was going to contest the subpoena, officials said.