Obama Administration Remains Committed to FORCING REPORTER TO TESTIFY Against His Source

[Segami]

In a filing to a federal appeals court, the Justice Department argues that a reporter for the New York Times has no constitutional right to a reporter’s privilege in a case involving a leak allegedly committed by a former CIA officer. The case involves a former CIA officer, Jeffrey Sterling, who face charges of violating the Espionage Act for disclosing information to the press on a classified program “intended to impede Iran’s efforts to acquire or develop nuclear weapons,” which was published in Times reporter James Risen’s book, State of War. Since January 2008, the Justice Department has been trying to force Risen to testify against Sterling. Risen, backed by other media and press freedom organizations, has been fighting government efforts that have continued under the administration of President Barack Obama. The latest court filing from the Justice Department is in response to a petition from Risen to have the Fourth Circuit Court of Appeals rehear arguments that he should be protected from testifying by a reporter’s privilege. (Last month, the Fourth Circuit reversed a district court order that had held he was protected by a reporter’s privilege.)



The Justice Department argues that none of the decisions Risen cites, when arguing that he has a reporter’s privilege, hold “that a reporter who witnesses a crime and promises not to identify the perpetrator…has a privilege not to testify in a criminal proceeding. Indeed, every court of appeals to confront that situation has agreed with the panel.” Also, even if he did have a “reporter’s privilege,” the Justice Department suggests he may have waived his claim of privilege at some point and, “even if he did not, the qualified privilege he asserts would be overcome in light of the specific evidence at issue in this case.” The decision by the Justice Department to continue to fight in the courts for Risen to testify suggests a complete disregard for the concerns expressed by forty-six media organizations in a letter to Attorney General Eric Holder. The letter sent on August 21 by the Reporters Committee for Freedom of the Press (RCFP) demanded the subpoena against Risen be withdrawn



According to the letter,

“New Department policy authorizes a subpoena to a member of the news media only ‘as a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.’” This is what was adopted after the uproar over the Justice Department’s seizure of phone records from the Associated Press. Yet, the Justice Department does not appear to be following the guideline. The letter notes that US District Judge Leonie M. Brinkema rejected the argument by the government that Risen is “the only source” of information needed to prosecute the case. Brinkema noted in her July 29, 2011, opinion “the abundant circumstantial and documentary evidence that supported the proposition that the government sought to prove, ‘including numerous telephone records, email messages, computer files, and testimony [from two other witnesses] that strongly indicates that Sterling was Risen’s source.’”

After the 2011 ruling, according to POLITICO‘s Josh Gerstein, where Brinkema ruled Risen would not be forced to testify, Justice Department Criminal Division Senior Litigation Counsel William Welch indicated the case would continue to go forward. The case moved onward until Brinkema ruled that “two important witnesses would be barred from testifying as a result” of a delayed disclosure of information to the defense. The government decided to file an appeal when this happened and decided to resume efforts to force Risen to testify. Times executive editor Jill Abramson has said the effort against Risen is detrimental to “the ongoing important work that journalists do in holding powerful institutions and the government accountable to the people.” She has also expressed concern that the “process of news gathering is being criminalized” and that the Obama administration’s actions are frightening potential sources.


cont'



http://dissenter.firedoglake.com/2013/08/27/obama-administration-remains-committed-to-forcing-reporter-to-testify-against-his-source/

[progressoid]

1. Oh fuck that freedom of the press stuff.

That is sooooo 20th century.

[Recursion]

2. I thought secrets were bad?

They're good when reporters want to keep them, now?

[HumansAndResources]

7. Protecting Whistleblowers Aren't the Secrets I'm Worried About

What the Whistleblowers "leak" are the secrets that unveil the lies that allow us to be fooled again, and again, and again. Hence the Exploiter-Corporate-Backing State's need to "shut them up."

[geek tragedy]

3. Remember how DU lined up to support Judy Miller

when she was put in jail?

Me neither.

[Hydra]

5. Actually, I didn't support that either

I was probably part of the minority, but freedoms are supposed to be for everyone. Judith was an asshole and a Cheney tool, but we have those protections for a reason.

[geek tragedy]

6. Well, you are more consistent than most then. nt

[Bonobo]

8. DU was opposed to Judith Miller for reasons that everything to do with lying.

And nothing to do with revealing or not revealing sources.

Nice try.

[msanthrope]

12. Right...kindly point to the DU thread that denounced Patrick Fitzgerald

for imprisoning her when she refused to name Scooter Libby as her source?

[Bonobo]

14. No, YOU point me to the thread where Bush was defended for forcing a reporter

to reveal sources in the name of "national security".

Because that would be the real test.

And... you know it. (But you won't admit it, so I have to laugh)

[msanthrope]

16. You are the one making the fantastical claim that Judith Miller was forced to give over Scooter

Libby because of "lying" and not because of what the law demanded. So back up your claim. It's not my claim.

I think both reporters should have to follow the law, just like other American citizens.

[Bonobo]

18. Huh? I never said anything of the sort.

I responded to the poster that tried to make a false equivalency between DU'ers not jumping up and defending Judith Miller when she was jailed and I meant to suggest the reason was that it was because she was disliked on DU.

But, if you anyone here defends forcing a reporter to reveal their sources, they should show some consistency and point to how they defended that principle when Bush did it.

The thing is, the stench of hypocrisy is SO STRONG.

It's like a dead body. You can hide it, but its rotten stench always reveals it.

[msanthrope]

21. Wait a second--that's priceless. Because Judith Miller was 'disliked' she should be subject to laws

that James Risen should not be subject to?

Unlike you, I supported the DOJ under Bush in their prosecution of the Plame leak, and under President Obama for the application of the same law to persons similarly situated. That, my friend, is equal protection under law--not based on who we like or dislike, or their politics.

And you know what? Every single DUer who supported Patrick Fitzgerald (like I did) was supporting a paid employee of the Bush DOJ. So don't start talking hypocrisy, because there are reams of threads of DUers supporting Fitzgerald.

If Miller was wrong to conceal her source, then so is Risen.

[Bonobo]

22. No, dude, you still don't get it.

She was disliked so no one on DU jumped to her defense -that doesn't mean that no one supported her protecting a source.

As far as supporting the prosecution of the Plame leak, it's a wee bit different in scale, no?

[msanthrope]

23. As my username clearly indicates, I am no dude. And I do get it--you don't have a cogent legal

argument why Judith Miller goes to jail, but James Risen, doesn't.

Don't worry....James Risen's highly-paid D.C. law firm doesn't have a cogent legal argument, either, as is apparent from the court record.

Arguably, outing one CIA operative is on a lesser scale than letting the Iranians know the details of our attempts to interdict their nuclear program. Personally, I think that when you have to resort to an equivalency argument, you have already lost the legal point and are now just trying to mitigate the penalty.

[woo me with science]

4. "The process of news gathering is being criminalized."

The United States of America is now a surveillance state.

The United States of America is criminalizing investigative journalism.

And here we go to Syria.

[Wilms]

9. ^

[treestar]

10. Reporters have to testify when they witness a crime

That is the law.

[davidn3600]

11. Good luck enforcing that law

Most journalists would gladly go to prison to protect their sources.

[msanthrope]

13. Actions have consequences. nt

[treestar]

20. That's always a possibility

And in this case, is it really worth it? It's not so noble. It's about Sterling and his job.

The article states that Sterling provided Risen with a copy of one of his CIA performance evaluations, which is identified as a classified document. The article also states that Sterling “relished his secret assignment to recruit Iranians as spies.” J.A. 156.

From the case. Sterling was supposed to be helping to impede Iran's ability to acquire nuclear weapons. What's so heroic about letting out information on that for the Iranians to see?

[struggle4progress]

15. Branzburg v. Hayes 408 US 665 (1972)

Opinion of the Court by MR. JUSTICE WHITE, announced by THE CHIEF JUSTICE.

The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not ...

The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do, and to answer questions relevant to an investigation into the commission of crime. Citizens generally are not constitutionally immune from grand jury subpoenas, and neither the First Amendment nor any other constitutional provision protects the average citizen from disclosing to a grand jury information that he has received in confidence ... It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability ... At common law, courts consistently refused to recognize the existence of any privilege authorizing a newsman to refuse to reveal confidential information to a grand jury ... This conclusion itself involves no restraint on what newspapers may publish or on the type or quality of information reporters may seek to acquire, nor does it threaten the vast bulk of confidential relationships between reporters and their sources ... Thus, we cannot 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 ... Neither are we now convinced that a virtually impenetrable constitutional shield, beyond legislative or judicial control, should be forged to protect a private system of informers operated by the press to report on criminal conduct ...

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0408_0665_ZO.html

[msanthrope]

17. Not a single poster on DU has ever been able to make a convincing argument why reporters should have

protections from criminal prosecutions that they should not have. I'd love to read a cogent argument that defends that unequal application of the law.

[kelliekat44]

19. Me too. nt