Reporter Risen Will Not Have to Identify Source in Leak Trial

A judge ruled on Friday that New York Times reporter James Risen will not have to testify about the identity of a source in the upcoming trial of former CIA officer Jeffrey Sterling, who is accused of leaking classified information to Risen.

The July 29 court order (pdf) said that Risen must testify only about certain non-privileged information.  Specifically, Mr. Risen was directed to appear at trial in order to confirm:  “(1) that Risen wrote a particular newspaper article or chapter of a book; (2) that a particular newspaper article or book chapter that Risen wrote is accurate; (3) that statements referred to in Risen’s newspaper article or book chapter as being made by an unnamed source were in fact made to Risen by an unnamed source; and (4) that statements referred to in Risen’s newspaper article or book chapter as being made by an identified source were in fact made by that identified source.”

The court order by Judge Leonie M. Brinkema was framed as a “partial grant” of the government’s motion to subpoena Mr. Risen.  But it was actually a defeat for the prosecution and an unambiguous victory for Mr. Risen.  This is clear from the fact that the court’s very language describing the required scope of Mr. Risen’s testimony was taken — practically word for word — from the June 21 motion by Risen’s attorneys to quash the subpoena, in which they set forth the limits of his willingness to testify (pp. 45-46).

Beyond the four enumerated categories Risen voluntarily agreed to discuss, “I cannot testify as to the Government’s other questions,” Mr. Risen wrote in his own affidavit (paragraph 60).

“To answer the Government’s other questions would violate my agreement to maintain in confidence not just the name(s) of my source(s), but information that would tend to reveal the identity/ies of my source(s). If I provide the testimony that has been requested of me, including the ‘what,’ ‘how,’ ‘when,’ and ‘where’ of acquiring each piece of confidential information, doing so will reveal my confidential source(s), regardless of whether I directly provide any name(s),” Mr. Risen wrote. “Accordingly, I cannot comply with the subpoena.”

Now the court said that he will not have to.

James Risen praised the court decision in a comment to Glenn Greenwald of Salon:

This is an important victory for the First Amendment, and for the freedom of the press in the United States. Some people don’t seem to understand the connection between the ability of journalists to protect their confidential sources and a free press. But if whistleblowers in government, in corporations, and elsewhere in society can be hounded and persecuted, and if the Justice Department is able to use its power to turn reporters into informants, then investigative journalism in America will surely wither and die. The First Amendment will have lost its meaning.

A memorandum opinion explaining the court order is still undergoing declassification review available here.