US prosecutors have appealed a federal district court decision to limit the scope of a journalist’s testimony in the trial of a former CIA officer accused of leaking classified information. Last week the case against New York Times reporter James Risen was taken to the appeals court after lower courts defended his right not to name a source. Risen was originally subpoenaed to give evidence in 2008. The Justice Department were asking Risen to give up his sources for a chapter of his book, “State of War: The Secret History of the CIA and the Bush Administration.” Risen refused citing a commitment to confidentiality.
Risen and a colleague won a Pulitzer for a December 2005 article in the New York Times that exposed the National Security Agency’s warrantless surveillance program. His book State of War was written a year later and it included explosive revelations about illegal actions taken by President Bush, including the domestic wiretapping program. It also disclosed how Bush secretly pressured the CIA to use torture on detainees in secret prisons, how the White House ignored information that showed Iraq had no weapons of mass destruction, and how the Bush Administration turned a blind eye to Saudi involvement in terrorism.
The chapter that got him into trouble is about the CIA’s efforts to disrupt the Iranian program. The CIA sent a defected Russian scientist to Vienna to give nuclear bomb plans to an Iranian official on the pretext he would provide further assistance in exchange for cash. The CIA deliberately inserted a technical flaw in the designs but the Russian scientist spotted it and told the Iranians. In his book, Risen said the ploy was reckless and may have had exactly the opposite effect than intended. The Bush administration subpoenaed Risen to reveal his source in January 2008. Risen successfully fought the subpoena which lapsed 18 months later. But in April 2010, the New York Times reported the Obama administration was still seeking to compel Risen to testify.
In the meantime US authorities’ suspicions about the identity of the leaker fixed on Jeffrey Sterling. Sterling was a former CIA officer trained to recruit Iranians to work for the CIA in the 1990s. Sterling, who is black, was sacked in 2002 and he claimed racial discrimination. However a court upheld the sacking saying litigation would require the disclosure of highly classified information. Between 2002 and 2004, the FBI claimed it tracked email traffic between Risen and Sterling. Sterling was arrested in January on charges he illegally disclosed national defence information and obstructed justice, but there was no mention of Risen in the warrant.
In July this year, a federal judge ruled Risen did not have to testify in the Sterling case saying prosecutors had not demonstrated his testimony was critical. District Court judge Leonie Brinkema said Risen’s testimony was not necessary because court records say an unidentified former intelligence official has testified that Risen told him Sterling was the source. Prosecutors argued the official's testimony would be inadmissible hearsay, but Brinkema ruled it would not be because statements that tend to prove an individual's guilt may not be hearsay. Brinkema's order restricted Risen's testimony to matters of his authorship and the accuracy of the book.
But now prosecutors have appeal Brinkema’s decision to the US Court of Appeals in Richmond, Virginia further delaying Sterling’s trial which was due to start yesterday. Prosecutors cited a 1972 US Supreme Court decision Branzburg v Hayes which ruled 5-4 reporters have no First Amendment right to refuse to answer all questions before grand juries if they witnessed criminal activity. However in the years following Branzburg, federal courts nationwide interpreted the “limited nature” of case to give journalists qualified privilege to balance their right to protect the sources against the government’s need for the information.
Reporters Without Borders has urged the Obama administration to withdraw the appeal. “We remind the Obama administration that its role is not to determine what is good coverage of national security issues,” Reporters Without Borders said. “Jeffrey Sterling’s trial has now been suspended indefinitely. Forcing Risen to testify is an attempt to muzzle every journalist who might publish leaked information. It is an attempt to decide what should and should not be in the press.” They had a statement from Risen which said he would press on. “I believe that this case is a fundamental battle over freedom of the press in the United States,” Risen said. “If I don’t fight, the government will go after other journalists.”
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