(MintPress)—The Department of Justice (DOJ) is seeking to overturn a District Court ruling that protected a reporter from testifying against an alleged confidential source, arguing in an appeals court Friday there is no ‘protected journalist privilege’ when it comes to cases that involve leaked national security documents.
The case is seen as pivotal to the future of freedom of the press protections, as any ruling would have implications for journalists working with undercover sources, adding to the list of the Obama Administration’s crackdown on whistleblowers who turn over information to the press.
New York Times reporter James Risen filed a motion in 2011 to quash a subpoena in the case involving former Central Intelligence Agency (CIA) agent Jeffrey Sterling, who the DOJ is alleging leaked documents to Risen that detailed a botched plot to infiltrate an Iranian nuclear facility. The court ruled in favor of Risen, stating he would be obligated to speak on behalf of evidence provided to him, but would be protected from revealing his source.
On Friday, the U.S. government argued against this ruling in a 4th U.S. Circuit Court of Appeals, with DOJ attorney Robert Parker attempting to overturn the decision, claiming Risen is the only eyewitness in the case, in addition to claims that such information must be turned over in the name of national security.
Risen claims journalistic privilege
Risen was initially served with a subpoena when the case began in 2008, which was quashed a year later. A second subpoena was issued in 2010 and another in 2011 — the subpoena at question now in the appeals court.
In a request to dismiss the 2011 subpoena, Risen argued he’s protected from revealing his source by the First Amendment’s freedom of the press.
“ … The subpoena should be quashed and/or a protective order entered because the testimony the Government seeks is protected by the reporter’s privilege arising under the First Amendment to the United States Constitution and under federal common law, and the Government has failed to demonstrate that that privilege does not apply,” the motion states.
Brinkema made the claim that the government would have to prove that Risen’s testimony was absolutely critical to the case, which she claimed it did not. The Reporters Committee for Freedom of the Press states Brinkema said the government has telephone records, email messages, computer files and witness testimony that could indicate Sterling was the person who leaked information, therefore leaving Risen’s testimony out of the realm of necessity.
“A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” Brinkema claimed. “The government must establish that there is a compelling interest for the journalist’s testimony, and that there are no other means for obtaining the equivalent of that testimony.”
While Brinkema ruled on behalf of Risen, the DOJ is asking for the decision to be overturned, saying Risen is the only eyewitness to the case, and, therefore, essential in order for the trial to proceed.
“The government sought Risen’s testimony to establish that Sterling was indeed the source of the information,” the motion states.
During pretrial proceedings Friday, Parker also cited the historic Supreme Court Branzburg vs. Hayes case as a precedent for his argument. In the 1972 landmark case, the Supreme Court ruled that three journalists could not subpoenaed to testify against a confidential source if it would compromise the safety of the reporter or reveal the identity of the informant. However, the case also set the precedent that journalists could be subpoenaed to reveal information received while working with a confidential source.
“The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury’s investigation of a crime or to conceal the criminal conduct of his source of evidence thereof,” the court ruling states.
Parker argued that the act of passing classified information is a crime, and therefore, the reporter’s protection should be lifted.
In Friday’s appeals case, the three-judge panel did not seem to buy the argument that Branzburg vs. Hayes favored the side of the government, saying instead that the case provided precedent that journalists were protected from revealing the actual source of information.
Journalists at center of whistleblower crackdown
Government officials, including former Secretary of State Condoleezza Rice, urged Risen to not publish the story, claiming a breach of national security. While the story was never published in the New York Times, Risen did use a confidential source to detail the accounts within a chapter of his book, “State of War: The Secret History of the CIA and the Bush Administration”
The recent claims by the DOJ reflects a wider issue within the federal government on crackdown over leaks. While President Barack Obama claimed on the campaign trail he would ease up on the backlash against whistleblowers, claiming his government would herald transparency overall. But during Obama’s time in the White House, six whistleblowers who have turned information over to the press have been charged under the Espionage Act.
Those who criticize the government claim the crackdown on whistleblowers will limit transparency within the government, intensifying the culture of fear among those who attempt to expose the inner working of the government. Risen is one of those critics.
“I think the basic issue is whether you can have a democracy without aggressive investigative reporting and I don’t believe you can. So that’s why I’m fighting it,” Risen said during a National Press Club meeting.
While the Risen case will be watched closely among those within the industry, it will also come in the midst of government accusations that information regarding the May foil underwear bomber plot, which has been traced back to the White House. The report, first released by the Associated Press, indicated that CIA was heavily involved in the plot. The report was allegedly made possible by someone within the government who leaked the information.