Reporter Risen Moves to Quash Subpoena in Leak Case

Attorneys for New York Times reporter James Risen yesterday asked a court to quash a subpoena requiring him to testify in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information to Mr. Risen.

“Because the information sought by the Government is protected by the reporter’s privilege under the First Amendment and federal common law, and the subpoena is part of an effort to harass and retaliate against Mr. Risen for writing things that were critical of the government, Mr. Risen respectfully requests that the Court … grant Mr. Risen’s motion to quash the grand jury subpoena and/or for a protective order,” attorney Peter K. Stackhouse wrote (pdf).

Mr. Risen himself submitted a lengthy affidavit (pdf) reflecting on his own career, the function of investigative reporting in the national security domain, and the stakes involved in the Sterling case subpoena.

“I take very seriously my obligations as a journalist when reporting about matters that may be classified or may implicate national security concerns,” he wrote.  “I do not always publish all information that I have, even if it is newsworthy and true.  If I believe that the publication of the information would cause real harm to our national security, I will not publish a piece.  I have found, however, that all too frequently, the government claims that publication of certain information will harm national security, when in reality, the government’s real concern is about covering up its own wrongdoing or avoiding embarrassment.”

His investigative reporting has made him a target for government retribution, Mr. Risen wrote.

“By publicly speculating about the possibility of prosecuting journalists, such as myself, under the Espionage Act for publishing truthful stories containing classified information, I believe that the Government was trying to intimidate journalists, like me, who publish stories that expose excessive government secrecy, illegality, or malfeasance.”

“I believe that the efforts to target me have continued under the Obama Administration, which has been aggressively investigating whistleblowers and reporters in a way that will have a chilling effect on the freedom of the press in the United States.”

“Any testimony I were to provide to the Government would compromise to a significant degree my ability to continue reporting as well as the ability of other journalists to do so.  This is particularly true in my current line of work covering stories relating to national security, intelligence and terrorism.  If I aided the Government in its effort to prosecute my confidential source(s) for providing information to me under terms of confidentiality, I would inevitably be compromising my own ability to gather news in the future.  I also believe that I would be impeding all other reporters’ ability to gather and report the news in the future.”

“Based on my review of the Government’s papers and the particular nature of the testimony the Government claims to be seeking, I have concluded that I cannot answer the questions the Government wants to ask me consistent with my obligation to maintain the confidentiality of my source(s),” Mr. Risen wrote.

The Risen pleading, portions of which were filed under seal, was accompanied by hundreds of pages of exhibits and attachments (large pdf), including declarations filed in support of Mr. Risen in 2008 by journalists Scott Armstrong, Carl Bernstein, Jack Nelson, and Dana Priest, and historian Anna Nelson.

In a separate response (pdf), attorneys for Mr. Sterling also opposed the government’s motion to subpoena Mr. Risen.

A court hearing on the subpoena and the motion to quash is scheduled for July 7, 2011 in the U.S. District Court for the Eastern District of Virginia.