Testimony of Reporter Sought in Sterling Leak Case

In a brief filed Friday in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information, prosecutors told the U.S. Court of Appeals that New York Times reporter James Risen should be compelled to testify at Mr. Sterling’s trial and to reveal whether it was Mr. Sterling who leaked information to him about a CIA program to disrupt Iran’s nuclear weapons program.

A lower court found that Mr. Risen had a “qualified reporter’s privilege” which exempted him from disclosing his sources in this case.  But prosecutors said the lower court ruling was in error and they asked the Appeals Court to overturn it. They said that unlike in certain civil cases, there is no reporter’s privilege to protect confidential sources in criminal cases.

Here, however, the disclosure of classified information is the alleged crime. As a consequence, what is at stake in this case, beyond the individual fate of Mr. Sterling, is the ability of reporters to protect their sources of classified information.  The Appeals Court is poised to either strengthen that ability or to significantly weaken it.

Prosecutors also disputed two other lower court rulings, which they said were “erroneous” and would cripple their case against Mr. Sterling, which has been suspended until the appeal is resolved.

“In three pretrial rulings, the district court severely circumscribed the government’s ability to prove these allegations and effectively terminated the prosecution,” prosecutors wrote in their 99-page pleading on January 13:

“First, the court held that Risen — the only eyewitness to the crime and the only person who could identify Sterling as the perpetrator — had a First Amendment right to refuse to identify his source. This ruling suppressed the only direct evidence of Sterling’s crime.”

“Second, the court suppressed the testimony of two of the government’s key witnesses as a sanction for the late disclosure of alleged Giglio information [i.e. information pertaining to deals or promises made to the witnesses in exchange for their testimony]. The court found no evidence that the disclosure (which occurred less than 12 hours after the expiry of the district court’s discovery deadline and several days before trial) was the result of bad faith, and it never meaningfully considered granting a continuance or any other remedy before striking the witnesses. This decision had the effect of terminating the prosecution.”

“Third, the court announced that the government was required to disclose to the defendant and the jury the true names of several covert CIA officers and contractors who it intended to call to testify at trial. The court reached this conclusion despite having previously held that the government need not identify the witnesses by name in discovery or at trial because that information (which is classified) would not be useful or necessary to Sterling’s defense, could place the witnesses in significant danger, and could damage national security.”

“The district court’s rulings are erroneous. The government respectfully requests that this Court reverse those rulings and remand this case to the district court for trial,” prosecutors wrote.

The new prosecution brief, which was redacted for public release, provides a detailed account of the facts and the law of the Sterling case from the government’s perspective.

The brief says that Mr. Risen himself is not accused of engaging in criminal activity.  “Nonetheless, at Risen’s request, the government has agreed to grant Risen immunity from prosecution in exchange for his testimony, and thus the subpoena raises no Fifth Amendment [self-incrimination] concern,” the brief said.

Attorneys for Sterling and Risen will each respond with their own opening briefs on February 14.

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