The American Bear


James Risen's risk of prison means journalism is being criminalised | Lindsey Bever

"I’ve been an investigative reporter for a long time, and almost always, the government says that [‘you can’t publish that because of the national security risk’] when you write a story. And then they can never back it up. They say that about everything. And it’s like the boy who cried wolf. It’s getting old." - James Risen

New York Times reporter James Risen has been ordered to testify in the criminal trial of former Central Intelligence Agency official Jeffrey Sterling, who has been indicted under the Espionage Act of 1917 – for leaking classified information to Risen for publication in his book, State of War. Last month, the US court of appeals for the fourth circuit in Richmond, Virginia, ruled that Risen could not claim a reporter’s privilege under the first amendment to win exemption from being compelled to testify.

In effect, the court has ruled that the journalist must reveal his source. That sets a dangerous precedent now applicable in Maryland and Virginia, home to the NSA and CIA – the very states in which national security journalism matters most. If a reporter cannot guarantee confidentiality to an important source willing to provide information that may be of vital public interest, the job of journalism itself has been criminalised. If a reporter like Risen refuses to co-operate and name names, he himself may face time behind bars.

Indeed, like a dedicated few before him, Risen has vowed to go to prison rather than break his vow of confidentiality in the courtroom. Although there will almost certainly be an appeal, the court’s ruling is a potentially devastating blow to investigative journalism. Given its significance, it is shocking how little publicity the Risen/Sterling case has yet received from major media outlets with a direct interest in its outcome.


Fourth Circuit Guts National Security Investigative Journalism Everywhere It Matters | Marcy Wheeler

The Fourth Circuit — which covers CIA, JSOC, and NSA’s territory — just ruled that journalists who are witnesses to alleged crimes (or participants, the opinion ominously notes) must testify in the trial.

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.

With this language, the Fourth applies the ruling in Branzburg — which, after all, pertained to the observation of a drug-related crime — to a news-gathering activity, the receipt of classified information for all the states in which it most matters.

The opinion goes on to echo DOJ’s claims that Risen’s testimony is specifically necessary.

Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.

… There is no dispute that the information sought from Risen is relevant. Moreover, it “can[not] be obtained by alternative means.” Id. at 1139. The circumstantial evidence that the government has been able to glean from incomplete and inconclusive documents, and from the hearsay statements of witnesses with no personal or first-hand knowledge of the critical aspects of the charged crimes, does not serve as a fair or reasonable substitute.

… Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information. And it was through the publication of his book, State of War, that the classified information made its way into the public domain. He is the only witness who can specify the classified information that he received, and the source or sources from whom he received it.

… Clearly, Risen’s direct, first-hand 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.

This language will enhance the strength of the reservation DOJ made to its News Media Policies, allowing it to require testimony if it is essential to successful prosecution.

The only limit on the government’s authority to compel testimony under this opinion is if the government is harassing the journalist, which (with proof of the way the government collected phone records, which remains secret) might have been proven in this case. There is a strong case to be made that the entire point of this trial is to put James Risen, not Jeffrey Sterling, in jail. But Leonie Brinkema has already ruled against it. I think the subpoena for 20 AP phone lines might rise to that level as well, except that case is being investigated in the DC Circuit, where this ruling doesn’t apply.

This pretty much guts national security journalism in the states in which it matters.

Golly. It was just last week when the press believed DOJ’s News Media Guidelines would protect the press’ work.


“It’s a fairly basic constitutional issue for the press, whether or not there is a reporter’s privilege. It’s something a lot of people outside the press don’t really understand, don’t really care about. 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.”

James Risen, reporter, New York Times, in a talk at the National Press Club. 'Reporter's Privilege' Under Fire From Obama Administration Amid Broader War On Leaks.

Background: The Obama Justice Department continues its attempts to force Risen to testify against CIA agent Jeffrey Sterling by arguing that Reporters’ Privilege does not exist when the information revealed is considered illegal.

In this case, the CIA’s Sterling is charged with leaking classified information about a plot against the Iranian government that Risen then used in his book, State of War: The Secret History of the CIA and the Bush Administration.

Via the Huffington Post:

While the Obama administration hasn’t prosecuted those responsible for torture during the Bush years, it is taking a strong stand against a former official believed to have supplied information to the media about use of torture and other controversial tactics during the previous administration.

In January, the Justice Department charged former CIA officer John Kiriakou with disclosing classified information to the media; The FBI claims to have evidence linking him to a 2008 New York Times story detailing the interrogation of Abu Zubaydah.

In another notable case, the DOJ charged Thomas Drake under the Espionage Act, claiming the former National Security Agency official provided classified information of gross NSA mismanagement to a Baltimore Sun reporter. The government’s case collapsed in 2011 and Drake pleaded guilty only to a misdemeanor.

The crackdown hasn’t gone unnoticed among reporters, with tension recently spilling out into the White House briefing room after the administration praised Anthony Shadid and Marie Colvin, journalists who died while covering the bloody conflict in Syria.

Jake Tapper, the senior White House correspondent for ABC News, asked White House Press Secretary Jay Carney how public support of those journalists’ work “square[s] with the fact that this administration has been so aggressively trying to stop aggressive journalism in the United States by using the Espionage Act to take whistleblowers to court.”

"There just seems to be a disconnect here," Tapper added. "You want aggressive journalism abroad; you just don’t want it in the United States."

NYT reporter James Risen asks court to protect sources | Josh Gerstein

Lawyers for New York Times reporter James Risen asked a federal appeals court on Tuesday to uphold a lower court’s rulings that federal prosecutors should not be able to question him about most details of his confidential sources for a 2006 book that described a botched Central Intelligence Agency program to sabotage Iran’s nuclear program.

Prosecutors pursuing a criminal case against former CIA officer Jeffrey Sterling for allegedly leaking top-secret information about the program to Risen are appealing U.S. District Court Judge Leonie Brinkema’s rulings that sharply limited Risen’s testimony. But Risen’s lawyers said in a brief filed Tuesday that the appeals court should reject the government’s appeal.

Risen’s lawyers, Joel Kurtzberg and former U.S. Attorney David Kelley, argued to the U.S. Court of Appeals for the Fourth Circuit that the appeal was premature because while Brinkema seemed to rule out allowing Risen to be questioned directly about the identity of his sources, she said she hadn’t made a final decision on all aspects of his testimony and might still require that he answer questions about such points as where he was when he learned certain facts.

The brief for Risen (posted here) also makes a more direct plea to the appeals court to uphold the basic principle of reporter’s privilege, a legal protection many courts have recognized to keep journalists from being forced to testify in many civil and criminal cases.


A showdown in the federal appeals courts over the scope and application of reporter’s privilege is highly unusual and has drawn the attention of First Amendment and press advocates. Some involved in the case expect it to reach the Supreme Court.

DOJ still wants reporter's sources | POLITICO

In a move that could unleash a major First Amendment battle, the Justice Department is asking a federal appeals court to force a New York Times reporter to testify about his confidential sources at the trial of a Central Intelligence Agency officer accused of leaking top-secret information.

In a court filing Wednesday, federal prosecutors formally appealed U.S. District Court Judge Leonie Brinkema’s ruling in July that Times national security reporter James Risen did not have to identify his sources during the trial of ex-CIA officer Jeffrey Sterling. Brinkema ruled that Risen’s testimony was covered by a “reporter’s privilege,” and that the government had not made a sufficient showing that he was essential to proving the case against Sterling.

Sterling was indicted last year on ten felony counts, including charges that he violated the Espionage Act by disclosing top-secret information to Risen about a CIA effort to undermine Iran’s reputed nuclear weapons program by giving the country flawed nuclear designs.

Sterling’s trial was to have opened with jury selection on Monday, but was indefinitely postponed at the last minute after the government indicated it planned an appeal.

“If they go forward with this….we would expect to oppose this appeal and to fight it,” an attorney for Risen, Joel Kurtzberg, said Wednesday. more

Holder’s gotta go. His “justice” department is an absolute joke.