(CN) - A New York Times reporter must identify the source of U.S. defense secrets that he published, the government said in a brief with the 4th Circuit, hoping to build its case against former CIA operative Jeffrey Sterling.
Sterling faces a trial on charges that he leaked classified defense information to New York Times reporter James Risen. Prosecutors say that Risen's 2006 book, "State of War," reveals confidential details about Operation Merlin, a CIA effort to transmit flawed nuclear weapon designs to Iran.
Though the government says Sterling leaked this information, Sterling says that Risen could have received the same information from any of several other officers. Since Risen will not disclose his source because of journalistic privilege, the government has a heavy burden to meet.
A federal judge agreed that Risen would not have to name his source, but prosecutors hope to overturn that decision on appeal.
"The Supreme Court has held unambiguously that the First Amendment does not exempt a reporter from testifying about his sources, even those to whom the reporter has promised confidentiality, so long as the reporter's testimony is sought in connection with a criminal proceeding brought in good faith," according to the government's brief filed Friday.
In its 1972 ruling in Branzburg v. Hayes, the Supreme Court refused to "seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it," the brief continues. "The crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not."
Though the federal appeals court has recognized a qualified "reporter's privilege" in civil cases, prosecutors say "it has rejected such a privilege in criminal cases absent a showing that the subpoena was issued in bad faith."
Even if Risen meets the reporter's privilege criteria, the importance of his testimony allegedly outweighs that privilege. "Risen is the only eyewitness to the crime and, as the recipient of the classified information as issue, he is inextricably linked to criminal conduct," according to the brief.
"Risen's testimony is the only direct evidence of Sterling's guilt; no circumstantial evidence, or combination thereof, is as probative as Risen's testimony or as certain to foreclose the possibility of reasonable doubt," the 99-page filing states.
The brief also protests the trial court's suppression of two government witnesses as a sanction for violating discovery orders. The government provided Sterling's team with its witness information 12 hours after the discovery deadline.
Given that "the information is not exculpatory and its impeachment value is slight," the court should have ordered a continuance, prosecutors say. But "the district court never meaningfully considered this course," the brief states.
Instead, "despite finding no evidence of bad faith, it struck two of the government's key witnesses and effectively terminated the prosecution."
That sanction "effectively terminated the prosecution," the government says.
It also claims that the trial judge abused his discretion by letting Sterling and the jury access the full names of seven government witnesses who are currently covert CIA operatives.
In an earlier order, the court had said the government's witnesses could testify using pseudonyms and enter the courtroom through a private entrance to the courtroom. The order also barred sketch artists from their testimony and let certain witnesses testify behind a screen.
After making these allowances, "the court, without any prompting from Sterling, announced that it had decided to disclose the true names of all the covert witnesses," to both Sterling and the jury.
U.S. District Judge Leonie Brinkema explained her decision by saying that "the defendant may know things about a witness, and he can then turn to counsel and say: Hey ask him such-and-such on cross-examination."
He rejected the government's contention that "the charges against Sterling (which included illegally disclosing information about a covert CIA asset) strongly counseled against unnecessarily providing him with the information."
But prosecutors say the court reached this decision in part "to compel the government to reduce the number of witnesses it intended to call at trial."
Brinkema told the government that "you might not need all of these people, and quite frankly ... the less exposure you have to make of such people, I would think that's in the government's interests," the brief states.
The government says Brinkema "repeatedly found that the covert witnesses' true identities and association with the CIA were classified secrets and were not necessary or helpful to Sterling's defense, and thus that the information could not be disclosed in discovery or at trial."
Therefore, "the court's eleventh-hour decision to reverse course and require disclosure to the defendant and the jury - despite the fact that Sterling had not asked for such disclosure or identified any reason why he needed the information - is an abuse of discretion," the brief concludes.
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