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As Sterling Trial Nears, Risen to Show in Court

     ALEXANDRIA, Va. (CN) – New York Times reporter James Risen will appear in court as a former CIA agent stands trial for an alleged leak, but it remains to be seen whether the journalist will answer any questions.
     In the culmination of a six-year subpoena battle, prosecutors announced in a Tuesday hearing that they will issue yet another subpoena for Risen to appear in court. Risen’s attorney, Joel Kurtzberg, said this time Risen will appear, although not willingly.
     “He’s certainly not volunteering to be here,” Kurtzberg said at the hearing.
     This will be the fourth subpoena since 2008 that will direct Risen to testify in the government’s case against Jeffrey Alexander Sterling, a former CIA agent accused of giving Risen confidential information that he used in his 2006 book, “State of War: The Secret History of the CIA and the Bush Administration.”
     A motion filed by the government just before the 10 a.m. hearing listed just three areas in which it wants Risen to testify: that he has a confidentiality agreement with the source, or sources, for his book and he will not breach it; that he wrote “State of War” and two specific articles in the New York Times, one of which is an open interview with Jeffrey Sterling and the other uses a confidential CIA source; and that Risen had a prior reporter-source relationship with Sterling that was not confidential.
     The last-minute nature of the government’s motion caused a bit of confusion in the courthouse, as U.S. District Judge Leonie Brinkema said she had seen the document only 10 minutes before the hearing and the defense team had not even seen it long enough to read it completely. The motion promotes holding a pretrial hearing to question Risen and thereby resolve any issues before proceedings get underway.
     Brinkema accepted the proposal as an alternative to putting Risen on the witness stand at trial to have him “bombarded with questions” he won’t answer. She set the hearing for Jan. 5, 2015, at 10:30 a.m.
     With Tuesday’s half-hour hearing establishing only that Risen will show up for a hearing on Jan. 5, Sterling’s attorney Barry Pollack said outside the courtroom that “it all remains to be seen” how this latest government subpoena will affect the trial.
     “There’s a difference between appearing and answering questions,” Pollack said in an interview.
     Risen’s book “State of War” investigated a number of questionable actions taken by President George W. Bush and his administration, including domestic wiretapping and torture of detainees. The government’s interest in the book centers around Chapter 9, where Risen reveals information shared with him through one or more confidential CIA sources about Operation Merlin, a botched attempt by the CIA to provide faulty nuclear blueprints to Iran. Rather than hinder Iran’s nuclear developments, Operation Merlin may have actually helped.
     Risen has fought each of his subpoenas, making it clear to the government and the public that we would rather go to jail than reveal his sources.
     “Compelling journalists to testify about their conversations with confidential sources will inevitably hinder future attempts to obtain cooperation from those or other confidential sources,” Risen wrote in a 2011 affidavit opposing his trial subpoena. “It creates the inevitable appearance that journalists either are or can be readily converted into an investigative arm of the government. This would seriously compromise journalists’ integrity and independence, qualities that are essential to our ability to gain the trust of potential news sources and to effectively investigate and report on newsworthy events.”
     Though Judge Brinkema had initially upheld Risen’s First Amendment reporter’s privilege, the 4th Circuit reversed her decision in July 2013. The U.S. Supreme Court declined to take up the issue earlier this year.
     Brinkema in turn scheduled Tuesday’s hearing as a deadline for the government to decide once and for all whether it will compel Risen to take the stand.
     Sterling’s trial is slated to begin Jan. 12, 2015. He stands charged with unauthorized disclosure of national defense information and unlawful retention of disclosure of national defense information, violations of the Espionage Act of 1917.
     The CIA fired Sterling in 2002 after nearly a decade as an agent. Risen interviewed Sterling that same year and published a story in which Sterling alleged racial discrimination by the CIA. The government put its case against Sterling together using communication between him and Risen it intercepted from the year that followed Sterling’s termination.
     The government’s treatment of Risen in relation to the Sterling case has drawn close scrutiny from the national media, as American journalists have waited to see whether the U.S. government would jail a journalist for refusing to give up a source.
     “Recently, it has become more clear than ever to me how important promises of confidentiality are to my sources,” Risen wrote in his 2011 affidavit. “In my ongoing reporting and news gathering, numerous sources of confidential information have told me that they are comfortable speaking to me in confidence specifically because I have shown that I will honor my word and maintain their confidence even in the face of government efforts to force me to reveal their identities or information. The fact that I have not previously revealed my sources has allowed me to gain access to newsworthy information that I could not otherwise get.”

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