A reporter for The New York Times will have to testify against a CIA official accused of leaking classified information to him, according to a split decision by an appeals court in Virginia. In effect, the decision removes a critical protection for journalists who report on government activity—exposing a gap that new proposals on media protections from Congress and the administration do nothing to close.
The Times itself reports on the decision.
In a 118-page set of opinions, two members of a three-judge panel for the United States Court of Appeals for the Fourth Circuit in Richmond, Va.—the court whose decisions cover the Pentagon and the C.I.A.—ruled that the First Amendment provides no protection to reporters who receive unauthorized leaks from being forced to testify against the alleged sources who leaked to them.
James Risen, the reporter at issue, wrote a book in 2006 documenting a failed government plan to pass bad information to Iran. The government believes that the information about that plan, which was classified, came from CIA officer Jeffrey Sterling. In 2011, the FBI subpoenaed Risen, demanding he testify against Sterling. Risen challenged that subpoena, leading to today's decision.
The Guardian's Spencer Ackerman captured the primary resulting sentiment: "Every national security reporter is threatened by this unfortunate ruling." Blogger emptywheel was more succinct. "This pretty much guts national security journalism in the states in which it matters."
Which comports with the dissenting opinion. The Times:
“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,” he wrote. “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.”
Over the past two weeks, both the Department of Justice and a bipartisan group of senators have introduced new rules and policies aimed at ensuring media protections. Those proposals stemmed from recent revelations about the government's subpoena of phone records from the AP and the administration's ongoing push to charge leakers with violations of the Espionage Act—actions which threaten the privacy of the reporters that detail the leaks.
But neither of those new policies apparently would protect Risen or reporters in similar situations. In effect, all three branches of the government agree: reporters should sometimes have to testify against their sources.
The attorney general's new policy—which doesn't have the strength of law—protects reporters' materials, unless the reporter himself is implicated in a crime not related to news coverage. Here's the change Justice proposes:
[T]he Department will modify its policy concerning search warrants covered by the [Privacy Protection Act] involving members of the news media to provide that work product materials and other documents may be sought under the "suspect exception" of the PPA only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities.
That modification, you'll note, doesn't cover forced testimony.
New legislation proposed by Senators Chuck Schumer of New York and Lindsey Graham of South Carolina gets a little closer. Part of the goal of the legislation is to codify protections similar to those presented by Holder, with the aim of ensuring consistency under a new attorney general. While the bill does not yet appear to have been filed, the senators' press release explains its intended outcome. Noting that it "[p]rovides no ABSOLUTE privilege for journalists," it stipulates situations in which that privilege might be rescinded in the event of a leak of classified information: "when information would prevent or mitigate an act of terrorism or harm to national security." That's a vague standard.
The dissenting judge raised another key point in his response to the decision. Again, The Times:
In his dissent, Judge Gregory said that he would recognize a qualified reporter’s privilege in criminal cases—including national-security-related ones, depending on the newsworthiness of the information and the potential harm its dissemination could cause. He also argued that prosecutors had enough other evidence to make their case without Mr. Risen’s testimony.
“Whatever the limits of who may claim reporter’s privilege, it is clear that Risen—a full-time reporter for a national news publication, The New York Times—falls into the category of people who should be eligible to invoke the privilege,” he wrote.
Raising one last point of concern: A reporter from a more modest media outlet might not even have the benefit of a dissenting opinion if forced to testify.
Photo: A man cleans the lobby of the CIA. (AP)
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