In a 2-1 decision Friday, the U.S. Court of Appeals in Richmond, Va., reversed a lower court’s ruling that found that Risen’s testimony, sought by federal prosecutors, was protected by the 1st Amendment.
“He is the only one who can identify Sterling as the perpetrator of the charged offenses, and he is the only one who can effectively address Sterling’s expected efforts to point the finger at others,” U.S. Circuit Judge William Traxler wrote in the majority opinion.
Sterling is charged with leaking information to Risen in violation of the Espionage Act. The information was made public in a chapter in Risen’s “State of War: The Secret History of the CIA and the Bush Administration,” which revealed a covert operation involving an attempt to supply Iranian officials with flawed nuclear weapons plans.
His trial was put on hold while the appeals court considered challenges to evidence the jury may hear.
Sterling is one of at least seven Americans charged under the Espionage Act of 1917 during President Obama’s administration, twice as many as in the previous 90 years. All were accused of leaking secrets to journalists in violation of a law that prohibits disclosure of national defense information to anyone not authorized to receive it.Before Obama took office, the Espionage Act, signed by President Woodrow Wilson, had been primarily employed against some of the most damaging double agents in U.S. history. They included Aldrich Ames, a CIA official convicted in 1994 of spying for the Soviet Union and Russia, and Robert Hanssen, a former FBI agent convicted in 2001 of similar offenses.
“We are disappointed by and disagree with the court’s decision,” Joel Kurtzberg, a lawyer for Risen at Cahill, Gordon & Reindel in New York, said in an emailed statement. “We are currently evaluating our next steps.”
Bloomberg, parent of Bloomberg News, was among the news organizations filing court papers on Risen’s behalf.
The ruling comes one week after the Justice Department tightened guidelines its prosecutors use in investigations that involve members of the news media. The new rules were designed in the wake of criticism from lawmakers, journalists and free-press advocates over the handling of cases involving the Associated Press and Fox News. The guidelines restrict the use of subpoenas and search warrants for journalists.In a letter to the appeals court Friday, Kurtzberg said the department’s new policy meant Risen need not testify because of a common-law legal privilege.
“The DOJ’s recent change of position is nothing less than an admission that the legal standard it asks this court to apply provides wholly inadequate protection for the interests at stake in this case,” Kurtzberg wrote.
The Justice Department is “examining the next steps in the prosecution of this case,” spokesman Peter Carr said in an emailed statement.
The 1st Amendment doesn’t protect reporters who are called to testify in criminal proceedings about criminal conduct they may have “personally witnessed or participated in, absent a showing of bad faith, harassment or other such non-legitimate motive,” Traxler said.Traxler also said Risen has information that the government cannot obtain through other means, such as witnesses or documents.
“Risen is without dispute the only witness who can offer this critical testimony,” said Traxler, whose opinion was joined by Judge Albert Diaz.
In a dissent, Judge Roger Gregory said the majority’s decision was “contrary to the will and wisdom of our founders.” He also accused his colleagues of overstating the importance of Risen’s testimony.
He referred to affidavits filed in the case by journalists explaining how confidential sources were integral to informing the public of the government’s actions, such as the abuse of prisoners in Abu Ghraib, Iraq, and the Watergate scandal.“The paramount importance of the free press guaranteed by our Constitution compels me to conclude that the 1st Amendment encompasses a qualified reporter’s privilege,” Gregory said.
The decision underscores the need for a shield law protecting journalists from revealing their sources, said Gregg Leslie, a lawyer at the Reporters Committee for Freedom of the Press. The U.S. should stop prosecuting people who reveal to the media important information about government operations without intending to damage the United States, he said in a telephone interview.
“If the only evidence is having the reporter testify, the better thing to do -- the judicious thing to do -- is maybe say, we won’t prosecute this case,” said Leslie, whose group filed court papers in support of Risen, a former reporter for the Los Angeles Times.
Prosecutors allege that Sterling was the source for a chapter in Risen’s 2006 book that detailed a failed effort by the CIA to have a former Russian scientist plant flawed nuclear weapons blueprints with the Iranians.
Sterling was charged in a 10-count indictment in December 2010 with unauthorized retention and communication of national defense information, unauthorized conveyance of government property, mail fraud and obstruction of justice.
The case is U.S. v. Sterling, 11-05028, U.S. Court of Appeals for the Fourth Circuit (Richmond).