Times Reporter Balks at Grapple|by Prosecutors for His CIA Source

(CN) - In a new appellate brief, New York Times reporter James Risen says he should not be compelled to reveal the confidential source who revealed U.S. military defense secrets.

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 again argued that Risen must testify, claiming that the importance of his testimony outweighed any reporter's privilege, as he is the only eyewitness to the crime.

In a brief filed Tuesday, Risen urged the Richmond-based appellate court to uphold the lower court's ruling. "The Fourth Circuit recognizes a qualified First Amendment reporter's privilege that may be invoked when a subpoena either seeks information about confidential sources or is issued to harass or intimidate the journalist," said Risen's attorney, Joel Kurtzberg with Cahill, Gordon & Reindel in Manhattan.

Quoting Justice Lewis Powell's opinion in Branzburg v. Hayes, the 78-page brief says: "The asserted claim to privilege should be judge on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."

"In the 40 years since Branzburg was decided, the Fourth Circuit has never ordered a journalist to testify about his or her confidential sources," Kurtzberg added.

"As the District Court noted, although the government did cite to the indictment concerning what it expected the evidence to be at trial, it provided neither the district court nor counsel for the defendant or Mr. Risen with any evidence demonstrating the need for Mr. Risen's testimony," the brief continues.

"Rather than come forward with affirmative evidence that alternative means were unavailable, the government merely repeatedly asserted that Mr. Risen was the only one who could 'provide eyewitness testimony that directly, as opposed to circumstantially,' clarifies who Mr. Risen's sources were," Kurtzberg wrote. "The District Court correctly rejected this argument, noting that, 'as the standard jury instructions and case law establish, 'circumstantial evidence is no less probative than direct evidence.'

"The district court also correctly rejected the government's argument that it was 'self-evident' that, 'in a leak case such as this one, Risen is the only source for the information the government seeks,'" he added. "The District Court found that 'this argument clearly misstates the evidence in the record which ... includes numerous telephone records, email messages, computer files, and testimony that strongly indicates that Sterling was Risen's source.'"

Kurtzberg says that "the government never even attempted to explain why, given the specific evidence available in this case, its need for Mr. Risen's testimony was compelling." (emphasis in original)

"As the District Court observed, the government 'has not pleaded that Risen's testimony is necessary or critical to proving Sterling's guilt beyond a reasonable doubt; instead, it argued that Risen's testimony would 'simplify the trial and clarify matters for the jury' and 'allow for an efficient presentation of the government's case,'" the brief states. "The District Court found that such objectives were 'neither necessary nor critical to demonstrating Sterling's guilt' and that 'if making the trial more efficient or simpler were sufficient to satisfy the compelling interest factor, there would hardly be a qualified reporter's privilege.' That finding was not in error."

Risen's brief concludes with claim to public interest. "We respectfully submit that leak cases should also include a weighing of the competing interests as they manifest themselves in the case at hand - that is, by 'weighing the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information's value,'" Kurtzberg wrote, citing the D.C. Circuit's order that held New York Times reporter Judith Miller in contempt for subverting a subpoena to reveal covert CIA operative Valerie Plame as her source.

"Put simply, incorporating this public interest analysis is the most direct way to protect journalism based on leaks that cause more good than harm," the brief states. "It also provides a basis to force the privilege to yield for leaks that cause more harm than good."

"It is clear that the newsworthiness of the information contained in Chapter 9 of 'State of War' outweighs any alleged harm that was caused by its publication," Kurtzberg wrote.

"As for the potential harm caused by the leak, although the government has publicly criticized the reporting as harming national security, it has never been able to articulate why," the brief states. "Operation Merlin is now approximately twelve years old, and it has been over six years since State of War was published. At the time of publication, these stories were old enough that they were not likely to cause any tangible harm to national security."

"Some government officials may not personally favor the scrutiny that Mr. Risen's reporting - in Chapter 9 and elsewhere - has subjected them to," Kurtzberg concluded. "There is little doubt, however, that this reporting presents exactly the kind of public interest value that animates reporter's privilege jurisprudence."

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