A sharply divided federal appeals court in Virginia today rejected a New York Times reporter's claim that he cannot be compelled to testify in the prosecution of a former CIA official in a national security case.
The U.S. Court of Appeals for the Fourth Circuit overturned a trial judge's ruling that quashed subpoenas seeking testimony from James Risen in the government's case against former CIA agent Jeffrey Sterling. Prosecutors charged Sterling in Alexandria federal district court in 2010 with the unauthorized retention and disclosure of information about a secret CIA operation targeting the Iranian nuclear weapon program.
Risen published a book in 2006 titled "State of War: The Secret History of the CIA and the Bush Administration" that described, in one chapter, a "failed attempt by the CIA to have a former Russian scientist provide flawed nuclear weapon blueprints to Iran." The details, the Fourth Circuit said, included classified information. Risen has not revealed his sources.
"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," Chief Judge William B. Traxler Jr. wrote for the majority. The opinion is here, and click here for audio from the court's hearing.
The only constitutional privilege Risen was entitled to invoke, Traxler said, was the Fifth Amendment protection against self-incrimination. Risen, the court said, has been granted immunity from any potential criminal liability. The majority also expressly rejected the availability of a qualified, federal common-law reporter's privilege to protect confidential sources.
"Risen’s testimony is the best evidence to prove Sterling’s guilt beyond a reasonable doubt to a jury charged with the search for the truth," Traxler wrote. "He is the only one who can identify Sterling as the perpetrator of the charged offenses, and he is the only one who can effectively address Sterling’s expected efforts to point fingers at others."
A lawyer for Risen, Joel Kurtzberg, a partner at Cahill Gordon & Reindel, in New York, said in an email: "We are disappointed by and disagree with the Court's decision. We are currently evaluating our next steps." One option includes asking the full appellate court to review the panel decision. (Numerous press outlets, including ALM Media, participated as amici in support of Risen.)
The majority decision drew a sharp dissent from Judge Roger Gregory, who called press freedom "one of our Constitution's most important and salutary contributions to human history."
"Our country’s Founders established the First Amendment’s guarantee of a free press as a recognition that a government unaccountable to public discourse renders that essential element of democracy— the vote—meaningless," Gregory wrote. "The majority reads narrowly the law governing the protection of a reporter from revealing his sources, a decision that is, in my view, contrary to the will and wisdom of our Founders."
Gregory said " public debate on American military and intelligence methods is a critical element of public oversight of our government. Protecting the reporter’s privilege ensures the informed public discussion of important moral, legal, and strategic issues."
At oral argument, in May 2012, Gregory reportedly said: "The king always wants to suppress what they are doing — that is what is troubling.”
The Fourth Circuit majority distinguished the reporter-source relationship from other communication lines, including attorney-client and spousal.
"The recognized privileges promote the public’s interest in full and frank communications between persons in special relationships by protecting the confidentiality of their private communications," Traxler wrote. "A reporter’s privilege might also promote free and full discussion between a reporter and his source, but Risen does not seek to protect from public disclosure the 'confidential communications' made to him."
The majority also wrote: "If Risen is to be protected from being compelled to testify and give what evidence of crime he possesses, in contravention of every citizen’s duty to do so, we believe that decision should rest with the Supreme Court" and with Congress, which the appellate court said "can more effectively" weigh policy arguments for and against a reporter's privilege.
The Senate Judiciary Committee this month will assess recently introduced legislation—the Free Flow of Information Act—that addresses the creation of a reporter's privilege law. Earlier this month, Senator Patrick Leahy (D-Vt.), the committee chairman, said in a statement: "For many years, I have worked with others in Congress to enact a balanced media shield law that would establish a limited privilege for journalists to protect their sources and the public's right to know."
The Fourth Circuit, beyond addressing the press freedom component of the prosecution, also confronted a sanction the trial judge, Leonie Brinkema, imposed against the government for violating a discovery order. Brinkema struck two government witnesses to "even up the playing field” after the government missed a deadline to disclose certain information to Sterling’s defense attorneys.
The appeals court said today that "we cannot, of course, condone the government's oversight." The court, however, said it is "convinced… the government has been adequately chastened, and that it will proceed more judiciously in the future."
Prosecutors alleged in the indictment against Sterling, who is a lawyer, that he disclosed national defense information in retaliation of the CIA's refusal to settle on certain terms civil and administrative claims he brought against the agency. The Justice Department's statement on the case is here.
Sterling worked at the CIA from 1993 to 2002. During his service, he was part of a team that conducted intelligence activities concerning foreign countries' weapons capabilities, prosecutors said.
"The majority of the court spoke to the weakness of the government's case against Mr. Sterling and acknowledged that the government failed to provide the defense timely disclosure of material that impeaches certain government witnesses," said Miller & Chevalier partner Barry Pollack, a lawyer for Sterling. "It is unfortunate that the appellate court declined to uphold the trial court's sanction for the government's failure to meet its obligations."