James Risen at the National Press Club

The United States Supreme Court refused to hear an appeal from New York Times reporter James Risen, who has fought to protect his confidential sources as President Barack Obama’s administration insists on forcing him to testify in a leak prosecution.

Former CIA officer Jeffrey Sterling is alleged to have given information to Risen on a classified program “intended to impede Iran’s efforts to acquire or develop nuclear weapons,” which he later published in his book, State of War.

The Supreme Court provided no explanation. The decision to deny review of the case sent a clear message that it was not going to attempt to resolve an issue involving freedom of the press—whether reporters have a right to not reveal their sources.

The Obama administration, having won, must now decide whether it still wants Risen’s testimony at Sterling’s trial. If they do, Joel Kurtzberg, Risen’s attorney, told Reporters Committee for Freedom of the Press (RCFP), “If they say they are going to do that, we will make clear that [Risen] is not going to testify and then there would have to be a contempt hearing.”

There are no plans to back down. Risen has pledged to continue to fight.

Risen has not been held in contempt. He moved to quash a grand jury subpoena in January 2008, which a district court granted in part. The court found his testimony was “unnecessary” and “the icing on the cake” for an indictment of Sterling.

The court still permitted the government to question Risen on his conmunications with a “third party” on an “alleged confidential source.” Risen and the government moved for reconsideration of this ruling, but, when the grand jury expired, the subpoenas were nullified.

On January 19, 2010, Attorney General Eric Holder sought another grand jury subpoena. Issued on April 26, 2010, this one, according to a filing from Risen, “sought not the name(s) of Risen’s confidential source(s), but instead extraordinarily detailed information regarding ‘the where, the what, the how and the when’ of all communications with sources for Chapter 9.” [The part of his book on “Operation Merlin,” a “reportedly botched attempt by the CIA to have a former Russian scientist pass on fake and intentionally flawed nuclear blueprints to Iran.”]

The courts have been divided, with a district court granting a motion to quash to protect a “confidentiality agreement with his source,” a district court limiting the topics which government could question Risen, and an appeals court ruling last year in a split opinion that Risen had no reporter’s privilege to protect his confidential sources. This is why it seems like such a dereliction of duty for the Supreme Court to decline review of this case.

A posting from Cindy Gierhart of RCFP declared, “By denying Risen’s cert petition, the Supreme Court lets stand the decision from the Fourth Circuit, which suggests there is little to no protection for journalists who are asked to testify in criminal cases.”

“This precedent is especially disconcerting for journalists because the Fourth Circuit includes Virginia and Maryland, which are home to both the National Security Agency and CIA. If the government continues to prosecute leaks, it is likely the Fourth Circuit would be the epicenter of those cases,” she added.

Trevor Timm, executive director of the Freedom of the Press Foundation, which has people like Daniel Ellsberg, Glenn Greenwald, Laura Poitras and Edward Snowden on its board of directors, reacted.

“By going after Risen, the Obama administration has done more damage to reporter’s privilege than any other case in forty years, including the Valerie Plame leak investigation that ensnared Judy Miller during the Bush administration.

Timm also noted, “The Fourth Circuit is where many national security reporters live and work.” He said, “By eviscerating the privilege there, the government has made national security reporting that much harder in an age where there has already been an explosion in use of surveillance to root out sources of journalists.”

“Despite the damage its already done to reporter’s privilege on the whole, the government can still prevent Risen from going to jail by declining to call him to testify in the Sterling trial. Since the Attorney General has repeatedly stated that no reporter will go to jail for doing his or her job, that seems like the least they can do,” Timm further explained.

Attorney General Eric Holder has made such comments, however, these comments have not been “hints,” as the Times would suggest, that Risen won’t be jailed for refusing to testify at Sterling’s trial.

The Obama administration is not prosecuting Risen. It is prosecuting Sterling. Therefore, in order to prosecute the case, they would have the public believe that Risen’s testimony is necessary to convict Sterling.

If Risen was held in contempt and jailed, the Obama administration would argue they were not violating his press freedom but simply requiring him to comply with a subpoena as all citizens are expected to do when their testimony is needed in a courtroom. Not revealing sources in national security case may not be seen as part of a journalist’s job to the administration. In fact, Deputy Attorney James Cole would not answer New York Times reporter Matt Apuzzo when he asked if protecting a source was considered part of a reporter “doing his job.”

Furthermore, Gierhart outlined, “A journalist – or anybody – who refuses a court order could be fined or jailed, or both. So Risen could still be fined, even if he is not jailed, and fines can be steep. When USA Today reporter Toni Locy was held in contempt for refusing to identify her confidential sources in 2008, a judge ordered that she pay $500 a day for the first week, $1,000 a day for the second week, and $5,000 a day for the third week.”

The Obama administration could escalate its attacks on freedom of the press by seeking to bankrupt Risen.

Kurtzberg nicely put the responsibility on the Obama administration. “I hope that they don’t seek to find him in contempt for protecting his sources and doing his job.”

What is remarkable is, as Josh Gerstein of POLITICO noted, the Obama administration had in 2011 backed off and were willing to go to trial without having Risen “out his sources.”

This is a choice the Obama administration has made. They have chosen to relentlessly pursue a journalist who has not complied with their demands for testimony.

The backdrop for this prosecution is a presidential administration that has ensured the smallest amount of information about what the government is really doing winds up in the hands of reporters, zealous efforts to prosecute leakers, which (as seen in this case) has a chilling effect on freedom of the press, and the interception of confidential communications between reporters and sources subjected to unprecedented dragnet surveillance.

There’s a dirtiness to the Obama administration’s dealings. It demonstrates a complete lack of respect for the First Amendment, believing it can have Holder engage in public relations with heads of big media organizations and all will be fine. Yet, there is no protection for reporters to do their job and keep sources confidential.

Risen could very well serve time in prison now in defense of freedom of the press for all journalists in the United States, and the Obama administration seems to find this chilly climate, which in particular allows US intelligence agencies to conduct shadowy operations with no accountability, to be perfectly acceptable.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."