James Risen

The Justice Department has moved to exclude New York Times reporter James Risen as an “unavailable witness” at the trial of former CIA officer Jeffrey Sterling, who is accused of leaking classified information. The move comes after Sterling’s defense subpoenaed Risen and is the clearest sign yet that Risen has won his fight against the government.

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. He is charged with committing ten felonies, seven of which fall under the Espionage Act. His trial is currently scheduled to begin this week.

According to the motion filed by the government [PDF], Risen “refused to answer numerous questions posed by the government” during a hearing on January 5, which was convened to see which questions Risen would be willing to answer at trial.

Risen would not “answer questions that go to the heart of the case.” He stated he would “refuse to answer any questions that would directly or indirectly identify his source or sources, and that his position would not change regardless of any sanctions he might face based on his refusal to answer questions. He would not “provide information in any way that will prove or disprove a mosaic that the government seems to be trying to make.”

“Risen’s under-oath testimony has now laid to rest any doubt concerning whether he will ever disclose his source or sources for Chapter 9 of State of War (or, for that matter, anything else he’s written). He will not. As a result, the government does not intend to call him as a witness at trial. Doing so would simply frustrate the truth-seeking function of the trial,” the government adds.

The government argues that since Risen has made it clear “under oath, without hesitation or equivocation, that he will not answer questions that go to the heart of the case” then he should be “unavailable” and neither the defense nor the government should be permitted to call him as a witness.

The following instruction to be provided to the jury at the end of Sterling’s trial was also requested:

James Risen has refused to testify concerning his source or sources for Chapter Nine of his book State of War. He is therefore unavailable as a witness in this case. As a result, you should draw no inferences as to either the government or the defense based on Mr. Risen’s absence as a witness or any testimony he might have provided.

The defense should also not be allowed to comment on Risen’s “failure to appear” or suggest the government “failed to meet its burden because it did not call” Risen as a witness, the government additionally requests.

On January 9, defense lawyers subpoenaed Risen. It was one of the first signals that the Justice Department was done pushing to have Risen testify as a witness during the trial.

Every step of the way Risen has stood strong and refused to back down. 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.

However, the court was still willing to allow the government to question Risen on his communications 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 were 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. So, Risen turned to the Supreme Court.

On June 2, 2014, the Supreme Court refused to hear Risen’s case. Declining to review the case essentially meant that the court would not attempt to resolve a key issue involving freedom of the press—whether reporters have a right to not reveal their confidential sources.

The government could now subpoena Risen and force him to answer questions. If he refused to testify, they could hold him in contempt and even jail him. But a backlash against President Barack Obama’s administration steadily grew until Holder and other officials made the decision to abandon their campaign against him.

As Risen stated at the National Press Club in August 2014, “The Justice Department and the Obama administration are the ones who turned this really into a fundamental fight over press freedom. In their appeal to the Fourth Circuit, they said that the central issue of this case was not some details or some specifics. They said there was no such thing as a reporter’s privilege.”

“They turned this case into a showdown over the First Amendment and over the freedom of the press in the United States.”

Despite the admirable efforts of Risen, the government successfully argued in the courts that it had the power to force journalists to testify and reveal their sources if the Justice Department deems it necessary.

The government’s position for the past years has been they could not win without Risen’s testimony. “Risen is the only eyewitness to the crimes charged in the indictment, and his claim of privilege rests entirely on his assertion that he promised not to identify the perpetrator.” [PDF]

How true or reasonable does that statement appear to be now? It must be hyperbole otherwise Risen would still be in a position of having to testify against an alleged source.

It also is not like there will be no lasting impact as a result of the Justice Department’s initial decision to force Risen to testify. Permanent damage against the First Amendment appears to have been inflicted.

Cindy Gierhart of Reporters Committee for Freedom of the Press (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.

Risen has merely survived because of his status as a well-known journalist who works for the New York Times and his ability to mobilize support for him against the government. What if he had been a journalist, who was not so well-known? Or someone not so sympathetic and reputable?

All journalists still have to fear how the government may wield its authority against members of the press if they are prosecuting a case against a person who committed an unauthorized disclosure or blew the whistle on corruption, which appears to be what happened with Sterling.

*Photo is a screen shot from press conference at National Press Club on August 14, 2014

Kevin Gosztola

Kevin Gosztola

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