Court of Appeals ruling regarding James Risen subpoena reinforces need for federal shield law  

Sometimes timing is everything. That just might be the case with the regard to the United States Court of Appeals for the Fourth Circuit's July 19 ruling that New York Times reporter James Risen must testify as to the identity of a source who provided Risen with information published in his 2006 book "State of War: The Secret History of the CIA and the Bush Administration."   

Specifically, Risen is being asked to testify at the federal criminal trial of Jeffrey Sterling, a former CIA agent charged with unauthorized retention and disclosure of classified information. The information Risen published in the book relates to a classified program run by the CIA in which the agency unsuccessfully attempted to have a former Russian scientist provide flawed nuclear weapon blueprints to Iran. There is an abundance of circumstantial evidence that might identify Sterling as Risen's source: Sterling was assigned to this program, there is an abundance of telephone and email records showing the two had been in contact on several occasions, Risen wrote other articles about Sterling, and in April 2003 Risen notified the CIA and the National Security Council that he had information about this failed program (the Times did not publish a story about the program after Risen and then-Washington Bureau Chief Jill Abramson met with senior intelligence officials about the program).

Risen moved to quash the subpoena in the United States District Court for the District of Maryland. That court ruled in his favor, but 4th Circuit held that its prior finding of a First Amendment privilege in civil cases did not extend to criminal cases as well "absent a showing of bad faith, harassment, or other such non-legitimate motive." In addition, Risen's claim that a "common law" privilege is outweighed by the fact that Risen 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 fingers at others."

The 4th Circuit's decision came one day after the Senate Judiciary Committee said it would mark up S 987, the Senate's version of the Free Flow of Information Act, which could occur as early as Thursday, July 25, but is more likely to occur on Thursday, August 1. The need for this federal "shield law" is only heightened by the 4th Circuit's ruling that journalists have no First Amendment privilege in criminal cases, which puts this Circuit in the majority camp of federal courts who hold no constitutional reporters privilege exists.

But it can also be very instructive as to why the current debate over a key provision that may be impeding the Free Flow of Information Act's passage may not be as important - certainly not as potentially damaging - as some might believe. Even some of those fundamentally favoring the concept of a federal reporters shield law have reservations as to how the law should define a "journalist" or "journalism" for purposes of its application. This was perhaps the ultimate roadblock for the law in 2009, the last time it passed the Senate Judiciary Committee (after a similar bill passed the House of Representatives), coming as it did right after Wikileaks' largest "document dump" to date; many were concerned that Wikileaks, Julian Assange or others in future situations might self-identify as journalists to avoid identifying their sources.
 

There are two reasons this concern is unfounded. First, defining a "journalist" is the first, not ultimate, step in this process. It's not even the ultimate step in determining whether the person even qualifies. In every instance, a federal judge will be asked to determine whether the person claiming the privilege truly qualifies. Second, even if the person does meet the law's definition of a "journalist," the Free Flow of Information Act is a qualified, not absolute, privilege. The law recognizes that certain conditions might exist that merit the reporter's testimony despite the privilege and the policy decisions the privilege represents. Much like James Risen was forced to testify over his claims to a common law privilege, so too might Wikileaks, Julian Assange or others have to testify, even if they somehow qualify as a journalist, if the need for their testimony is important and unique.

The federal shield law will ensure that reporters' testimony, however, is limited to these relatively extraordinary cases. It represents the right balance between the need to protect the reporter-source relationship and the needs of federal courts to have access to important testimony. That's why we renew our request that you support the Free Flow of Information Act by asking your congressman or senator to vote for the bill, asking leadership to move the bill quickly to a full House or Senate vote, or joining as a co-sponsor.

Please contact ASNE Legal Counsel Kevin M. Goldberg at 703-812-0462 or [email protected] if you need more information. Join ASNE in the fight for a new shield law.