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 people suspected of leaking to them.
“Clearly, Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony,” wrote Chief Judge William Byrd Traxler Jr., who was joined by Judge Albert Diaz.
Mr. Risen has vowed to appeal any loss at the appeals court to the Supreme Court, and to go to prison rather than testify about his sources. On Friday, he referred a request to comment to his lawyer, Joel Kurtzberg, who wrote in an e-mail: “We are disappointed by and disagree with the court’s decision. We are currently evaluating our next steps.”
Judge Roger Gregory, the third member of the panel, filed a vigorous dissent, portraying his colleagues’ decision as “sad” and a serious threat to investigative journalism.
“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.”
The Justice Department offered no immediate comment. The ruling raises an awkwardly timed question for Attorney General Eric H. Holder Jr., who has portrayed himself as trying to rebalance the department’s leak investigations in response to the furor over its aggressive investigative tactics, like subpoenaing Associated Press reporters’ phone records and portraying a Fox News reporter as a criminal conspirator in order to obtain a warrant for his e-mails.
Last week, Mr. Holder announced new guidelines for leak investigations that significantly tightened the circumstances in which reporters’ records could be obtained. He also reiterated the Obama administration’s proposal, made in response to the controversy, to revive legislation to create a federal media shield law that in some cases would allow judges to quash subpoenas for reporters’ testimony, as many states have.
“It’s very disappointing that as we are making such good progress with the attorney general’s office and with Congress, in getting them to recognize the importance of a reporter’s privilege, the Fourth Circuit has taken such a big step backwards,” said Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press.
Mr. Risen is a national security reporter for The Times, but the case revolves around material he published in his 2006 book, “State of War,” not in the newspaper. A chapter in the book recounted efforts by the C.I.A. in the Clinton administration to trick Iranian scientists by having a Russian defector give them blueprints for a nuclear triggering device that had been altered with an error. The chapter portrays the operation as reckless and botched in a way that could have helped the Iranians gain accurate information.
In December 2010, a former C.I.A. officer, Jeffrey Sterling, was accused of being Mr. Risen’s source and indicted on Espionage Act charges. His is one of seven leak-related cases brought so far by the Obama administration, more than twice as many as under all previous presidents combined.
The appeals court’s move, which came more than a year after it heard oral arguments in the case, reversed a ruling by Judge Leonie M. Brinkema of Federal District Court in Alexandria, Va., who had sharply limited what prosecutors could ask Mr. Risen about his sources. She had written that he was protected by a limited “reporter’s privilege” under the First Amendment.
“A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” she wrote.
Article source: http://www.nytimes.com/2013/07/20/us/in-major-ruling-court-orders-times-reporter-to-testify.html?partner=rss&emc=rss