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Reporter James Risen Says US Government Has Made ‘No Offers’ Related to Testimony in Leak Case

James Risen

Despite comments from anonymous officials, the United States government has issued no formal offer to New York Times reporter James Risen to protect him from having to reveal any information about his confidential sources if he were to be subpoenaed and forced to testify in the trial of former CIA officer Jeffrey Sterling, according to his attorney.

Sterling is alleged to have given information to Risen on a classified program that the government claims was “intended to impede Iran’s efforts to acquire or develop nuclear weapons,” which Risen later published in his book, State of War. A trial is currently scheduled for January.

Risen’s attorney reacted to anonymous officials who leaked on December 12 that Attorney General Eric Holder would no longer force Risen to testify about the identity of his confidential sources:

NBC News Justice Correspondent Pete Williams obtained comment from a “Justice Department official,” who stated if the government subpoenaed Risen to force him to provide testimony, it would not be for testimony “about the identity of his source.” The government would have him “confirm that he had an agreement with a confidential source, and that he did write the book.”

The official added the government would “no longer seek what he’s most concerned about revealing.”

The Associated Press also obtained comment the same day from a “person familiar with the matter,” who suggested the “Justice Department may still subpoena Risen to answer other questions in the case but would not compel him to disclose the identity of his source.”

These comments would seem to indicate the end of an assault on freedom of the press that the government had been waging against Risen for the past six years. However, there is no reason to presume this episode is over until something is put down formally in a court filing, which Risen’s legal team approves because it will allow him to protect his sources.

US District Court Judge Leonie Brinkema, who is presiding over the case against Sterling, “set a deadline” of December 16 for the Justice Department to inform the court of whether it would seek testimony from Risen during trial.

If the Justice Department has backed off its campaign in the courts to force Risen to testify, why isn’t the public learning about this appropriately—through an announcement made before a judge in a courtroom or, perhaps, from Risen’s attorney after a filed motion?

As Josh Gerstein of POLITICO wrote, “There was no immediate word on whether the journalist would be asked to testify about the dates or places he acquired certain information, beyond any reference to that in the book. However, such a demand seems unlikely since it would almost certainly lead to the same kind of confrontation that Holder has repeatedly expressed a desire to avoid.”

The decision to have someone unidentified leak the fact that Holder and the Justice Department will be backing off is manipulative not to mention ironic, given the fact that this is an official making what is presented as an unauthorized disclosure about a development in a case involving multiple unauthorized disclosures.

It is distinctly possible that prosecutors would try to force additional testimony from Risen if he were to take the stand, which is why Risen and his attorney is not celebrating victory at the moment.

There is an additional reason to still be anxious: Earlier this year, Holder appeared to suggest during the Washington Ideas Forum that the government had an agreement with Risen.

“People have to understand something,” Holder declared. “We have been in touch with Mr. Risen’s lawyers. We’ve talked about a variety of things. If what we’ve talked about remains true, I think there’ll be a resolution of that that will be satisfactory to everybody. But as I said, no one’s going to be going to jail. No reporter’s going to jail as long as I am Attorney General.”

Neither Risen nor his lawyer knew what Holder was talking about. It prompted Sterling’s defense to file a motion requesting information on any agreement the government may have had. The government then had to respond that it had not “reached an agreement with [Risen] as to the scope of his potential testimony.” And that counsel for Risen had “simply informed the government” of Risen’s “current position if he were subpoenaed in the case.”

The filing informed the court and Sterling’s defense that prosecutors’ most recent communication with Risen’s lawyer was on October 16. His lawyer had informed the government that “Risen would not appear voluntarily, that is, a subpoena would be necessary to secure his presence at trial or any pre-trial hearing.”

“If subpoenaed to testify, Mr. Risen would testify that he wrote the book State of War as well as the prior newspaper story concerning the defendant, and that both the book and the story accurately reflect information obtained by Mr. Risen from his source or sources,” the government further indicated.

The Justice Department has fought against Risen’s claim that he has a reporter’s privilege not to reveal confidential sources and won a battle in the courts when the Supreme Court refused to hear Risen’s case this year.

A trial for Sterling has been delayed for at least three years because Risen was fighting off a subpoena from the government. As Sterling’s lawyer, Edward B. MacMahon Jr. said, “If the result is that the Attorney General does not want to issue the subpoena that his own Department of Justice fought for all the way to the Supreme Court, then three years of Mr. Sterling’s life have been wasted in litigation.”

Gerstein, who has been covering each stage of this case, reported prosecutors were once willing to prosecute Sterling without Risen’s testimony. Has this all been arrogance on the part of the Justice Department?

Then, there is the additional fact that Sterling faces a trial on ten felony counts, seven of which are under the Espionage Act. Much of the evidence in his case suggests he is another whistleblower who has fallen victim to President Barack Obama’s war on whistleblowers (even though his prosecution began before Obama was elected).

Marcy Wheeler and Norman Solomon reported for The Nation:

In early March 2003, Sterling met with two Senate Intelligence Committee staffers to report that Operation Merlin—the CIA’s ill-conceived and bungled effort in 2000 to use a former Russian scientist to pass flawed nuclear-weapons blueprints to Iran—may have helped Iran’s nuclear ambitions. The government concedes that Sterling went through proper channels when he “disclosed classified information” to committee staff. (In court documents, the prosecution has complained that Sterling was unfairly critical of that operation when he spoke to committee staffers.)

Many aspects of this prosecution are in service to current and former officials in the CIA offended by the way Sterling and Risen have challenged them. It is understandable that Risen—and Sterling as well—would be extremely cautious as litigation continues to unfold.

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Kevin Gosztola

Kevin Gosztola

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