James Risen may need to start packing a toothbrush and overnight bag because the Pulitzer Prize-winning reporter and author is headed to jail barring an unlikely change of heart by either the government or the federal judiciary.
Risen, who covers national security for the New York Times, got the bad news on Friday [July 20] that the federal appeals court in Richmond, Va., had upheld the government’s effort to force him to testify in the prosecution of an alleged CIA leaker. The government believes that ex-CIA agent Jeffrey Sterling leaked classified materials to Risen to use in his book State of War to recount a botched CIA operation a decade ago aimed at disrupting Iran’s nuclear program.
Risen has fought the subpoena, claiming a reporter’s privilege to protect confidential sources. Judge Leonie Brinkema, who is presiding over Sterling’s now-held-in-abeyance trial in federal district court in Alexandria, Va., ruled in July 2011 that Risen did not have to testify about any confidential sources. On Friday, however, the Fourth U.S. Circuit Court of Appeals reversed Brinkema’s ruling in a split decision by a three-judge panel.
For the majority, Chief Judge William Traxler found no reporter’s privilege under either the First Amendment or federal common law. In a sharp dissent, Judge Roger Gregory argued that the government does not actually need Risen’s testimony and that forcing him to testify would undermine freedom of the press in general and the ability of the press in particular to hold the government accountable on national security issues.
The ruling against Risen reflects the confluence of three unfavorable trends for reporters. Federal courts, starting with the Supreme Court in 1972, have been unreceptive to claims of a journalist privilege to refuse to disclose confidential sources. States have passed reporter shield laws, but they have been only partly effective and Congress has not acted on a federal shield law at all. And, most recently, the Obama administration has aggressively gone after government leakers, charging 11 people so far, including Sterling, with violating the federal Espionage Act and facing the risk of long prison sentences.
The Supreme Court started things going downhill for reporters with its 1972 decision in Branzburg v. Hayes that rejected a reporter’s privilege to protect confidential sources in three consolidated cases that involved reporting on marijuana users and black militants. Writing for the 5-4 majority, Justice Byron R. White, no fan of the press, said courts were entitled to testimony from reporters just like from anyone else. White disregarded such common law privileges as husband-wife, attorney-client, doctor-patient, and priest-penitent. Justice Lewis F. Powell Jr. added what has been labeled an “enigmatic” concurrence that seemed to recognize a limited privilege even while joining White’s majority opinion.
The Supreme Court has not revisited the issue. But Congress in 1975 approved a new provision for the Federal Rules of Evidence, Rule 501, that explicitly gives federal courts the authority to create new privileges. In 1996 the Supreme Court cited that provision in recognizing for the first time a psychotherapist privilege in federal courts (Jaffee v. Redmond).
Free press advocates use that precedent to argue for a federal common law privilege for journalists. But the argument failed before the D.C. Circuit in the case eight years ago that led to the jailing of New York Times reporter Judith Miller. And the Fourth Circuit panel rejected it as well in last week’s decision in Risen’s case. “[N]either Rule 501 nor Jaffee overrules Branzburg or undermines its reasoning,” Traxler wrote for the majority.
Risen’s case illustrates the heightened danger for reporters when the government decides to prosecute leakers themselves. In Branzburg, the reporters argued in part that the government did not need their testimony to prosecute the drug users or black militants for any crimes they may have committed. In the leak cases, however, the leak is the crime itself and the reporter may very well be a direct eyewitness.
As Traxler wrote, Risen “can provide the only first-hand account of the commission of a serious crime. . . .” (Risen has been granted immunity, so he cannot claim the Fifth Amendment privilege against self-incrimination.) In his dissent, Gregory disagreed, noting the circumstantial evidence the government has against Sterling, including records of telephone calls and e-mails between him and Risen. But Traxler says the government is entitled to the best evidence available: Risen’s own testimony about his sources.
The Obama administration is quite serious about going after government leakers, as documented in a thorough story in the Times on Sunday by reporter Sharon LaFraniere. “It is good to hang an admiral once in a while,” Dennis Blair, Obama’s first national director of intelligence and a former Navy man, is quoted as saying. He and Attorney General Eric Holder fashioned an anti-leak crackdown that filtered down to courtroom prosecutors.
Obama has turned aside criticism that the crackdown goes against his campaign promises for greater transparency. New Justice Department guidelines issued this month in response to media criticism seem to offer little help to Risen or others in like circumstances.
Risen and his lawyers are promising to appeal up to the Supreme Court if necessary. And Risen has indicated he will go to jail rather than comply with the subpoena. In his dissent, Gregory said the newsworthiness of Risen’s reporting outweighs any benefit to law enforcement from his testimony. Traxler brushed the argument aside, apparently willing to take the risk that reporters will find it that much more difficult to tell the public what the government does not want it to know about U.S. intelligence agencies.