Targets of Espionage Case Won’t Cave to Subpoena

(CN) - Desperate to meet its burden of proof in the prosecution of former CIA officer Jeffrey Sterling for allegedly leaking classified information, the government is attempting an end-run around a court order that protects New York Times reporter James Risen from testifying about his sources, Sterling and Risen said in new briefs.

Risen has refused to identify his "sources," a distinction stressed repeatedly in his court filings - since 2003, and in prior orders, the court has twice upheld his reporter's privilege to maintain the confidentiality of these source.

In August, prosecutors insisted that the court has still failed to specifically address remaining evidentiary issues that make Risen's testimony even more crucial to their case. The government asked the Alexandria, Va., court to reconsider its position or, alternatively, clarify its opinion.

Sterling slammed this maneuver to force Risen's testimony as inappropriate in a Sept. 14 opposition brief. Though the government has never spoken to Risen, it still presumes that his testimony would implicate Sterling, the brief states.

"The government is so fixated on compelling Mr. Risen's testimony that it is willing to concede that its case is weak and that it needs Mr. Risen to come to the rescue," Sterling's lawyer, Edward MacMahon Jr., wrote.

While the court has twice ruled that Risen cannot be compelled to identity his sources, Sterling says the government seeks circumstantial evidence that will implicate him as the source of the leak.

"Here, the government dramatically expands upon the unknown areas of inquiry as if adding new areas of testimony that it cannot proffer adds gravitas to the motion," Sterling's motion states. "It does the opposite."

Risen echoed these arguments in his opposition brief, accusing the government of attempting "to do an end-run around the court's earlier ruling" and of restating the same arguments already presented to the court.

"The court's opinion is abundantly clear that the questioning that the government seeks here is not permitted," according to Risen's filing, authored by attorney Peter Stackhouse. "Unsatisfied, the government now seeks testimony from Mr. Risen about additional topics."

"While the government tries to frame this motion as limited to a series of discrete topics, it cannot disguise its motivation," the brief states. "In seeking Mr. Risen's testimony, the government has only one objective: to elicit testimony from Mr. Risen that will tend to prove the identity of his confidential source(s)."

Both Sterling and Risen urged the court to maintain the position it laid out in its July 29, 2011, opinion. As Risen's brief points out, that opinion found that "courts have long held that the reporter's privilege is not narrowly limited to protecting the reporter from disclosing the names of confidential sources, but also extends to information that could lead to the discovery of a source's identity."

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