James Risen

A federal court in Alexandria, Virginia, has authorized a subpoena for New York Times reporter James Risen to force him to provide testimony in the trial of former CIA officer Jeffrey Sterling. Prosecutors would be able to ask if he had a “prior non-confidential reporter-source relationship” with Risen.

The former CIA officer 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.

According to a filing [PDF] from the United States government, Attorney General Eric Holder authorized prosecutors to seek testimony from Risen on the following:

a. That Mr. Risen has a confidentiality agreement with his source (or sources) for Chapter Nine of his book State of War and that he will not breach that agreement (or agreements);
b. That Mr. Risen authored Chapter Nine of his book State of War, a March 2, 2002 newspaper article entitled Fired by C.I.A., He says Agency Practiced Bias; and a November 4, 2001 newspaper article entitled Secret C.I.A. Site in New York Was Destroyed on Sept. 11, that the chapter and articles accurately reflect information provided to him by his source (or sources), that statements attributed to an unnamed source were, in fact, made by an unnamed source, and that statements attributed to an identified source were, in fact, made by an identified source; and
c. That Mr. Risen had a prior non-confidential reporter-source relationship with Jeffrey Sterling.

While Risen would not be required to reveal the identity of his source, he would have to confirm whether he had communications with Sterling. It would make it possible to draw inferences that would lead a jury to surmise that Risen was the reporter whom Sterling shared information.

POLITICO’s Josh Gerstein reported that US District Court Judge Leonie Brinkema scheduled a session on January 5 for prosecutors and defense attorneys to “run through what questions Risen would and would not” answer:

Brinkema said the Jan. 5 hearing could streamline Sterling’s trial. She said she didn’t want the jury present while Risen was “bombarded with questions he says he declines to answer…I want to make sure the questions he has to answer are set in stone.”

The Associated Press reported that at the end of the hearing Risen’s lawyer said he is not sure whether Risen will answer the questions the prosecutors intend to ask.

If he was on the stand and was asked a question he did not want to answer, he could be held in contempt of court.

Additionally, the defense for Sterling is not willing to agree to limit their questions. Sterling’s attorney Edward MacMahon Jr. informed the court he might like to use Risen to “introduce evidence about the scope of the government’s investigation” into Risen.

Gerstein reported, “The defense attorney said in court Tuesday that prosecutors also got copies of Risen’s Fedex receipts as well as ‘Western Union transactions of his children.'”

James Trump, one of the government prosecutors litigating the case, did not think such evidence would be relevant, however, he noted prosecutors would have to let defense attorneys ask whatever questions they wanted.

What is unclear is to what extent any cross-examination of Risen might jeopardize the reporter’s privilege that he has been asserting over the past six years, as he fought off a Justice Department insisting his testimony was required for prosecution.

A trial for Sterling has been delayed for at least three years because Risen was arguing he had a reporter’s privilege that protected him from being subpoenaed to reveal his confidential sources.

When news broke that Holder would no longer force him to reveal the identity of his confidential source at trial, MacMahon reacted, “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.”

In other words, one should expect that defense lawyers will seek to treat Risen as a potentially sympathetic witness and see what testimony they could elicit that would help their case.

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).

For example, 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.)

More than 15,000 people have signed a Roots Action petition urging the Justice Department to drop the charges against Sterling. Many of these people are individuals who supported activism around stopping Holder from signing off on a subpoena that would violate Risen’s press freedom.

Regardless of the fact that the Justice Department would claim it is striking a delicate balance, the government subpoena exposes Risen to risk that he would not have to worry about if prosecutors had proceeded as they once admitted they could, and declined to force Risen into providing any testimony.

Kevin Gosztola

Kevin Gosztola

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