Privilege Case Faces Hurdle on Way to SCOTUS

(CN) - Former CIA operative Jeffrey Sterling says Supreme Court interference in the order compelling a reporter to testify against him unnecessarily delays his trial for allegedly sharing state secrets.

Back in July, the 4th Circuit ordered New York Times reporter James Risen to reveal the source of the confidential state secrets he published in his book "State of War."

Sterling stands accused of leaking the top-secret information regarding "Operation Merlin," a botched attempt by the CIA to have a former Russian scientist pass obviously fake nuclear blueprints to Iran, to two-time Pulitzer Prize-winning journalist Risen.

"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," the 4th Circuit's ruling stated.

Risen hopes to petition the Supreme Court for a writ of certiorari, and asked the 4th Circuit on Oct. 22 for a stay pending the higher court's decision. He is represented by Joel Kurtzberg with Cahill Gordon & Reindel.

Without a stay, "the case will be remanded to the district court for trial, and Mr. Risen will likely be forced either to breach the promises he made to his confidential source(s) - thereby defeating the very claims he seeks to raise in the Supreme Court - or face a contempt finding with possible incarceration," Kurtzberg wrote.

The government told the federal appeals court Monday that it doees not oppose Risen's motion, but that July decision was correct.

"Even if a qualified privilege did exist, Risen still would not be entitled to relief in light of the panel's factual determination that the government's law-enforcement interests would overcome that privilege in the circumstances of this case," the brief Justice Department attorney Robert Parker stats.

The efficient use of judicial resources mandates staying the case, however, while Risen pursues Supreme Court review, the memorandum concludes.

Sterling, on the other hand, opposed Risen's motion for a stay.

"Mr. Sterling has always maintained his innocence and was prepared for trial in 2011," his brief says.

"It is Mr. Sterling who is the defendant in this matter and his right to have this case resolved should trump Mr. Risen's plainly sincere interest in further delay."

Sterling has faced the threat of incarceration for the last four years since his arrest, in addition to losing his job, making it impossible for him to live a normal life.

"Simply put, Mr. Sterling wants this case to be tried and resolved so that he can get on with his life," his attorney Edward MacMahon Jr. wrote.

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