In a filing to a federal appeals court, the Justice Department argues that a reporter for the New York Times has no constitutional right to a reporter’s privilege in a case involving a leak allegedly committed by a former CIA officer.
The case involves a former CIA officer, Jeffrey Sterling, who face charges of violating the Espionage Act for disclosing information to the press on a classified program “intended to impede Iran’s efforts to acquire or develop nuclear weapons,” which was published in Times reporter James Risen’s book, State of War.
Since January 2008, the Justice Department has been trying to force Risen to testify against Sterling. Risen, backed by other media and press freedom organizations, has been fighting government efforts that have continued under the administration of President Barack Obama.
The latest court filing from the Justice Department is in response to a petition from Risen to have the Fourth Circuit Court of Appeals rehear arguments that he should be protected from testifying by a reporter’s privilege. (Last month, the Fourth Circuit reversed a district court order that had held he was protected by a reporter’s privilege.)
The Justice Department argues that none of the decisions Risen cites, when arguing that he has a reporter’s privilege, hold “that a reporter who witnesses a crime and promises not to identify the perpetrator…has a privilege not to testify in a criminal proceeding. Indeed, every court of appeals to confront that situation has agreed with the panel.”
Also, even if he did have a “reporter’s privilege,” the Justice Department suggests he may have waived his claim of privilege at some point and, “even if he did not, the qualified privilege he asserts would be overcome in light of the specific evidence at issue in this case.”
The decision by the Justice Department to continue to fight in the courts for Risen to testify suggests a complete disregard for the concerns expressed by forty-six media organizations in a letter to Attorney General Eric Holder.
The letter sent on August 21 by the Reporters Committee for Freedom of the Press (RCFP) demanded the subpoena against Risen be withdrawn
According to the letter, “New Department policy authorizes a subpoena to a member of the news media only ‘as a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.’” This is what was adopted after the uproar over the Justice Department’s seizure of phone records from the Associated Press. Yet, the Justice Department does not appear to be following the guideline.
The letter notes that US District Judge Leonie M. Brinkema rejected the argument by the government that Risen is “the only source” of information needed to prosecute the case. Brinkema noted in her July 29, 2011, opinion “the abundant circumstantial and documentary evidence that supported the proposition that the government sought to prove, ‘including numerous telephone records, email messages, computer files, and testimony [from two other witnesses] that strongly indicates that Sterling was Risen’s source.’”
After the 2011 ruling, according to POLITICO‘s Josh Gerstein, where Brinkema ruled Risen would not be forced to testify, Justice Department Criminal Division Senior Litigation Counsel William Welch indicated the case would continue to go forward. The case moved onward until Brinkema ruled that “two important witnesses would be barred from testifying as a result” of a delayed disclosure of information to the defense. The government decided to file an appeal when this happened and decided to resume efforts to force Risen to testify.
Times executive editor Jill Abramson has said the effort against Risen is detrimental to “the ongoing important work that journalists do in holding powerful institutions and the government accountable to the people.” She has also expressed concern that the “process of news gathering is being criminalized” and that the Obama administration’s actions are frightening potential sources.
The decision to keep pressing for Risen to testify sends a clear signal that the Obama administration does not really care if its actions are having a chilling effect on the news gathering process.
After all, did the administration issue a clear objection when the British government detained Guardian journalist Glenn Greenwald’s partner, David Miranda, under a terrorism law so authorities could send a message that journalists should stop reporting on information from NSA whistleblower Edward Snowden, which shows the extent of cooperation between GCHQ and the NSA on top secret surveillance programs?
What kind of direct condemnation of the British government came when Guardian editor-in-chief Alan Rusbridger revealed the government had forced The Guardian into a position where it had to symbolically destroy hard drives so the government could send a message to British press to stop reporting on information from Snowden?
The White House may say it has a commitment to balancing freedom of the press with so-called national security interests, as it did when it came under fire from media organizations in May because AP had its phone records seized and Fox News reporter James Rosen was labeled an “aider, abettor and co-conspirator” in a leak investigation. However, the Obama administration has displayed a propensity for chilling news sources.
This sort of effect on journalism is likely acceptable to the administration because the administration believes it prevents leaks. It prevents government employees from exercising their free speech rights and talking with press instead of directing that reporters’ calls to a public affairs person, who has the authority to give an official “no comment.”
The reality is that the Obama administration has typically favored so-called national security interests over freedom of the press and so-called national security interests take precedent over some national security journalist’s First Amendment rights.