Feds Hope to Make Reporter Testify Without Rehearing

     (CN) – There is no need for the 4th Circuit to convene an en banc hearing over a subpoena compelling New York Times reporter James Risen to testify against the CIA operative who allegedly leaked him classified information, the government said.
     Former CIA operative Jeffrey Sterling stands accused as the leak. Risen, a two-time Pulitzer Prize-winning journalist, allegedly incorporated information he received from Sterling into Chapter 9 of his 2006 book “State of War.” Chapter 9 focuses on “Operation Merlin,” a botched attempt by the CIA to have a former Russian scientist pass obviously fake nuclear blueprints to Iran.
     Though U.S. District Judge Leonie Brinkema found that Risen has qualified reporter’s privilege under the First Amendment, a divided three-judge panel of the 4th Circuit stunned speech advocates last month by ordering Risen to testify.
     The reporter then petitioned for a rehearing en banc, and 27 media organizations rallied to his side with an amicus brief.
     Uncle Sam fired back Monday.
     “Risen is the only eyewitness to the crimes charged in the indictment,” the response states. “Put simply, when a reporter ‘undert[akes] not to reveal to testify a bout the crime he witnessed, his claim of privilege under the First Amendment presents no substantial question.”
     Risen’s attorney, Miller & Chevalier Chartered attorney Barry Pollack, said the Richmond, Va.-based panel “did not identify any judicially recognized factor the district court failed to consider nor did it remand to the district court the opportunity to consider any such factor.”
     “Likewise, the panel did not identify any faulty factual or legal premise on which the district court based its decision or remand for the district court to consider the matter under a corrected factual or legal premise,” Pollack’s brief stated.
     It was also incorrect to find that Judge Brinkema in Alexandria, Va., abused his discretion, Pollack argued.
     The appellate court’s reversal “can only be read as a conclusion that the district court acted arbitrarily or irrationally in choosing the sanction it did,” according to the brief.
     In reversing last month, the 4th Circuit failed to include “any discussion of the District Court’s analysis of prejudice or even acknowledge that the District Court had engaged in such an analysis,” Pollack added.
     Defendant Sterling meanwhile wants the full 4th Circuit to conclude that Brinkema correctly barred two government witnesses as a sanction for the delay in turning over discovery to the defense.
     The 4th Circuit’s July ruling reversed that sanction, and the government said Monday that this was the right call.
     “Sterling cites several cases in which courts affirmed the exclusion of evidence as a discovery sanction, but each involved very different circumstances than those here,” the Justice Department’s Robert Parker wrote. “There is no practical or legal reason to review the panel’s holding.”
     The news outlets called the July decision “unprecedented” in their amicus brief.
     Without review, the ability of journalists “to report on matters of substantial public concern will be significantly impaired,” their counsel, Lee Levine with Levine Sullivan Koch & Schulz, wrote.
     “‘The freedom of press is one of our Constitution’s most important and statutory contributions to human history,'” Levine wrote, quoting the opinion the media entities want reviewed.
     “Because the decision rendered by the panel majority is insufficiently protective of that fundamental freedom and contrary to prior rulings.”

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