Privilege Can’t Help Reporter in CIA Leak Case

(CN) - New York Times reporter James Risen must reveal the source who provided him with the confidential state secrets he published in his book "State of War," a divided 4th Circuit ruled.

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.

Federal prosecutors in Alexandria, Va., have repeatedly urged the court to compel Risen to identify his source, but U.S. District Judge Leonie Brinkema said Risen has qualified reporter's privilege under the First Amendment.

On appeal to the 4th Circuit, prosecutors said Risen must testify because the importance of his testimony outweighed any reporter's privilege as he is the only eyewitness to the crime.

A group of 29 news outlets and nonprofit groups filed an amicus brief urging the Richmond-based federal appeals court to support Risen's First Amendment claim.

But the divided 4th Circuit ruled Friday that "there is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source," citing the Supreme Court's decision in Branzburg v. Hayes.

"Even if we were at liberty to reconsider the existence of a common-law reporter's privilege under Rule 501, we would decline to do so," Judge William Traxler wrote for the majority.

The court found significant differences between a reporter's privilege and spousal, attorney-client and psychotherapist-patient privileges.

"The recognized privileges promote the public's interest in full and frank communications between persons in special relationships by protecting the confidentiality of their private communications," Traxler wrote. "A reporter's privilege might also promote free and full discussion between a reporter and his source, but Risen does not seek to protect from public disclosure the 'confidential communications' made to him. Risen published information conveyed to him by his source or sources. His primary goal is to protect the identity of the person or persons who communicated with him because their communications violated federal, criminal laws." (Emphasis in original.)

In addition, Risen alone has testimony that can confirm Sterling as the source of the leaked information.

Risen "is the only one who can identify Sterling as the perpetrator of the charged offenses, and he is the only one who can effectively address Sterling's expected efforts to point the finger at others," Traxler wrote. "If Risen identifies Sterling as his source, he will have provided unequaled evidence of guilt on this point, yet not deprived Sterling of his defense that the information in Risen's book was not, in fact, national defense information at all. And should Risen identify different or additional sources of national defense information, which could exculpate Sterling, the government maintains an equally compelling interest in obtaining the only available inculpatory evidence against all who jeopardized the security of the United States and at least one of its covert assets."

In a partial dissent, Judge Roger Gregory said he found "it sad that the majority departs from Justice Powell's Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for reporters. Under the majority's articulation of the reporter's privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial. The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society. The First Amendment was designed to counteract the very result the majority reaches today."

The court split along different lines to affirm the district court's decision to give Sterling and his counsel a key to the true identity of government witnesses who are covert CIA operatives and will testify from behind a screen, shielding their appearance from the public and the jury.

"Sterling knows, or may know, some of the witnesses at issue, and depriving him of the ability to build his defense in this regard could impinge on his Confrontation Clause rights," Gregory wrote in a separate opinion that Traxler did not join. "Moreover, and unlike the usual cases where witnesses have been permitted to use pseudonyms, the Government in this case has made no showing that Sterling or his counsel pose an actual threat to the safety of these witnesses."

The court found no reason to reveal the witnesses' true identities to the jury. "The true names of the CIA operatives at issue will do nothing to enhance the jury's understanding of the facts and legal issues presented at trial," Gregory wrote. "And although we are mindful that the jurors are unlikely to disseminate the names in contravention of the district court's instructions, it simply is not worth the risk to the lives of these operatives (and their families and associates) to disclose the operatives' true names to anyone who does not have a genuine need to know their identities."

Traxler said Sterling should not learn the witnesses' names.

"The grand jury in this case has found probable cause to believe that Sterling has already revealed classified information about a covert operation and a covert CIA asset for publication in the public domain," he wrote. "In my opinion, no more needs to be shown to demonstrate that disclosure of the true identities of the CIA witnesses to Sterling poses an actual and specific risk, sufficient to require serious inquiry into the necessity of the disclosure for purposes of confrontation."

All three judges revived two government witnesses that the District Court struck as a sanction for the delay in turning over discovery to Sterling's defense.

"Although the district court did not abuse its discretion by imposing a sanction, the sanction that it chose to impose was simply too severe a response to conduct that was not undertaken in bad faith, that can be remedied with a continuance, and that is unlikely to be repeated," that decision stated.

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