Journalists Win Victory Over Government in Leak Cases

In the ongoing battle between the Obama administration and journalists who publish classified information, score one for the journalists.

This month, the Justice Department unsealed an indictment against former CIA officer Jeffrey Sterling, who’s accused of giving information about classified intelligence operations to a newspaper reporter. That reporter, who’s unnamed in the indictment, is James Risen of the New York Times, whose 2006 book State of War chronicles intelligence blunders by the Bill Clinton and George W. Bush administrations.

In their quest to prosecute Sterling, federal attorneys subpoenaed Risen, not once but twice, to disclose his source or sources for the book. Subpoenas of journalists are rare. But as we reported last year, this was an extraordinary overreach by the Justice Department attorneys, who appeared to be violating their own rules on when it’s permissible to compel a reporter’s testimony in a criminal trial.

Risen fought the government, and he won. Now that the Sterling indictment is unsealed, Risen’s attorney reports that he successfully persuaded Judge Leonie Brinkema to quash the subpoena from last November by arguing that it was “not necessary.” The judge apparently agreed.

“I think it was an important ruling for press freedom,” Risen says.

The ruling matters because the stakes for journalists who receive confidential information have risen considerably. There was a time when reporters clung to the so-called “privilege” that exempted them from identifying their confidential sources. That all changed in 2005, when the New York Times’ Judith Miller failed to resist her subpoena in the Lewis “Scooter” Libby affair. When she was sent to jail for contempt of court, every reporter knew that he or she had lost a crucial defense for keeping their sources secret—and that prison time was more likely to be the price of doing so.

But the Risen matter offers a new line of defense. By quashing the subpoena, the judge pushed back against the Obama administration’s aggressive and arguably inappropriate use of its subpoena power. We already knew that Judge Brinkema was skeptical about the need for Risen’s testimony. Under federal rules, if the prosecution can identify an alleged leaker without compelling a reporter’s testimony, they’re supposed to leave the reporter alone. That’s apparently what the judge told them to do in Risen’s case.

And reporters now know they can argue the merits of the subpoena itself and have precedence for quashing it.

The Sterling indictment raises the troubling question of why the Justice Department spent so many years pursuing Risen. Clearly, they were able to bring a case against the former CIA officer without the reporter’s assistance. One has to wonder, who made the decision to push so hard on Risen? Perhaps prosecutors thought they’d stand a better chance with his testimony than without it. But the judge obviously disagreed. Risen might be the cherry on top of the government’s sundae, she seemed to say, but the sundae is substantial enough without it.

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Shane Harris