New York Times reporter James Risen at “Obama’s War on Leaks” panel at the National Press Club in May 2012

A divided federal appeals court ruled that a reporter for the New York Times did not have a reporter’s privilege under the First Amendment or common law that would protect him from having to testify in a leak case against one of his sources.

The Fourth Circuit Court of Appeals reversed a district court order, which held Times reporter James Risen had reporter’s privilege that entitled him “to refuse to testify at trial concerning the source and scope of the classified national defense information illegally disclosed to him.”

The case involves a former CIA officer, Jeffrey Sterling, who face charges of violating the Espionage Act after he disclosed information to the press on a classified program “intended to impede Iran’s efforts to acquire or develop nuclear weapons,” which was published in Risen’s book, State of War. [Note: It's referred to as Classified Program No. 1 in the ruling.]

The court declared, “There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”

The “compelling interest” the government had to obtain “direct evidence that Sterling compromised” the government’s “critical national security interests by disclosing classified information in violation of validly-enacted criminal laws” outweighed any privilege Risen might have.

Judge Roger Gregory wrote a dissenting opinion that defended freedom of the press:

…Undoubtedly, the revelation of some government secrets is too damaging to our country’s national security to warrant protection by evidentiary privilege. Yet the trial by press of secret government actions can expose misguided policies, poor planning, and worse. More importantly, a free and vigorous press is an indispensable part of a system of democratic government. Our country’s Founders established the First Amendment’s guarantee of a free press as a recognition that a government unaccountable to public discourse renders that essential element of democracy – the vote – meaningless. The majority reads narrowly the law governing the protection of a reporter from revealing his sources, a decision that is, in my view, contrary to the will and wisdom of our Founders…

Gregory acknowledged that “freedom of the press is one of our Constitution’s most important and salutary contributions to human history” and that “democracy without information about the activities of the government is hardly a democracy.” And, “A citizen’s right to vote, our most basic democratic principle, is rendered meaningless if the ruling government is not subjected to a free press’s ‘organized, expert scrutiny of government.’”

He also argued that “public debate on American military and intelligence methods is a critical element of public oversight of our government.”

Protecting the reporter’s privilege ensures the informed public discussion of important moral, legal, and strategic issues. Public debate helps our government act in accordance with our Constitution and our values. Given the unprecedented volume of information available in the digital age – including information considered classified – it is important for journalists to have the ability to elicit and convey to the public an informed narrative filled with detail and context. Such reporting is critical to the way our citizens obtain information about what is being done in their name by the government.

Gregory cited Scott Armstrong, a former Washington Post reporter, to outline why a reporter needed to be able to keep sources confidential:

Scott Armstrong, executive director of the Information Trust and former Washington Post reporter, points to three ways in which investigative journalism uses confidential sources: “developing factual accounts and documentation unknown to the public,” “tak[ing] a mix of known facts and new information and produc[ing] an interpretation previously unavailable to the public,” and “publiciz[ing] information developed in government investigations that has not been known to the public and might well be suppressed.” “It would be rare,” Armstrong asserts, “for there not to be multiple sources – including confidential sources – for news stories on highly sensitive topics.” In turn, “[m]any sources require such guarantees of confidentiality before any extensive exchange of information is permitted.” Such guarantees of confidentiality enable sources to discuss “sensitive matters such as major policy debates, personnel matters, investigations of improprieties, and financial and budget matters.” Even in ordinary daily reporting, confidential sources are critical. “[O]fficial government pronouncements must be verified before they are published,” and this is frequently done through discussion with officials not authorized to speak on the subject but who rely on assurances of confidentiality. These discussions can often lead to “unique and relevant, contextual comments” made by the confidential source, comments that deepen the story.

Essentially, if reporter’s privilege is not protected, a climate could further develop, where national security stories only include comments from spokespeople of agencies or institutions in government. Their comments would function like propaganda if what was said could not be independently confirmed but was accepted as true by reporters. The stories would help officials sell their agenda to the American people rather than merely informing citizens of key aspects of national security policies or programs.

Gregory found, “Common sense tells us the value of the reporter’s privilege to journalism is one of the highest order.” He noted that news organizations had submitted affidavits in support of Risen citing how confidentiality had allowed stories “critical to informing the public of the government’s actions” to develop.

For example, the Washington Post‘s Dana Priest noted in her affidavit that reporting on military prisoners at Guantanamo Bay, Cuba, prison abuse in Abu Ghraib, the existence of secret CIA prisons and “systematic lack of adequate care” for veterans at Walter Reed Army Medical Center would not have been possible without confidential sources, who were willing to speak to the press.

Gregory considered the newsworthiness of what Risen published versus the harm that may have been caused by publishing a story with classified information that Sterling was not authorized to release. He concluded the newsworthiness “appeared to be substantial.”

The information contained in chapter nine of State of War covers the United States intelligence community’s efforts concerning the development of the Iranian nuclear program. The chapter questions the competence of the CIA’s management of Classified Program No. 1. Chapter nine discusses a plan to have a former Russian scientist give Iranian officials incorrect nuclear weapon design specifications in an attempt to determine the status of the Iranian nuclear weapons program, and to stall or thwart the progress of that program, perhaps for years. The blueprints were so deficient, the chapter opines, that the Russian scientist spotted a flaw almost immediately. Although the scientist explained this flaw to the CIA, Risen writes, the CIA proceeded with the plot. In a letter accompanying the blueprints, the Russian scientist disclosed to the Iranians the flaw he spotted in the plans. Because the Iranians had received scientific help from Russian and Chinese scientists, the chapter continues, and because Iran already had black market nuclear blueprints, Iranian scientists could likely differentiate the good from the flawed in the American blueprints. In other words, Risen asserts, Classified Operation No. 1 may have helped Iran advance its nuclear program. The chapter also describes the inadvertent disclosure to an Iranian double-agent of the identities of every spy the CIA had within Iran – information that was then turned over to Iranian security officials, who in turn arrested a number of those agents. Finally, the chapter recounts the CIA’s inability to obtain more than “fragmentary information about Iran’s nuclear program.”

All of which indicates the US government was executing a “blundered American intelligence mission” in Iran.

Risen highlighted how US intelligence failed to uncover weapons of mass destruction in Iraq. His “investigation into the methods and capabilities of the United States foreign intelligence community with respect to the Iranian nuclear program is surely news of the highest import, particularly given the apparent contretemps made in the National Intelligence Estimate of 2007.” His reporting on “Iran’s nuclear capabilities is also particularly relevant given the criticism of the national press for its perceived failure to scrutinize United States intelligence regarding Iraq’s weapons capabilities.”

Such an assessment by Gregory is remarkable given the fact that most judges since the September 11th attacks would be inclined to assess how a journalist’s reporting could be damaging to national security instead of explicitly detailing the value of it.

It is also important to note what Gregory described about “newsworthiness” in his dissenting opinion:

By “newsworthiness,” I mean the value to the public of the leaked information concerning the issues of the day. Necessarily included in the concept of “newsworthiness” is the recognition that because this privilege is qualified, it will likely deter some potential sources from disclosing their information. Because the newsworthiness of the information cannot be adjudged by a court at the time of disclosure, a source takes a chance that a court will not protect the source. While this is somewhat speculative – not all reporters with confidential sources are routinely subpoenaed – to the extent this is a problem, the potential of this chilling effect counsels a broad definition of “newsworthiness.” On the other  hand, I would reject an absolute privilege because some discussions should be chilled – precisely those that seriously endanger individuals or our nation’s security without an outweighing, compelling civic benefit.

This is the real danger the ruling poses to journalism—fear of being forced to testify against confidential sources would escalate.

As Gregory strongly and appropriately concluded:

Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial. The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society. The First Amendment was designed to counteract the very result the majority reaches today.

Risen has apparently committed to going to prison before testifying in this case and will appeal this all the way up to the Supreme Court.

That Risen is in this position is a sad statement on freedom of the press in America. It also is but another example of how the administration of President Barack Obama has been more than willing to protect national security interests at the expense of freedom of the press.