Supreme Court declines case of reporter seeking to protect confidential source

The US Supreme Court declined Monday to take up the case of a New York Times reporter who is seeking to avoid being forced to reveal a confidential source in testimony in a criminal trial.

The reporter, James Risen, was subpoenaed to testify at the trial of a former Central Intelligence Agency officer accused of disclosing secret intelligence information without authorization to Mr. Risen.

Risen had sought to block his compelled testimony at the trial.

The high court turned down Risen’s petition without comment. The action lets stand a federal appeals court’s decision requiring Risen to testify at the trial. The appeals court rejected Risen’s argument that the courts should recognize a reporter’s privilege against being forced to reveal the identity of a confidential source.

It will now be up to prosecutors to decide whether to call Risen to testify during the trial. If he refuses to reveal his source, he could be held in contempt of court and sent to jail until he agrees to reveal the source.

The legal action stems from Risen’s reporting about the US intelligence community and classified information he allegedly obtained from a former CIA officer.

The secret information related to a covert operation that reportedly involved an attempt to frustrate Iranian efforts to build a nuclear weapon. The strategy was to route fake plans to construct such a device to Iranian officials through a former Russian scientist posing as a rogue nuclear mercenary.

Risen had written a news story about the operation, but the New York Times declined to print the report after requests to kill the story from the CIA director and national security adviser. Risen later wrote a book about the CIA and included an account of the Iranian operation in Chapter 9. The book is “State of War: The Secret History of the CIA and the Bush Administration.”

After an investigation, federal prosecutors charged Jeffrey Sterling, a former case officer who ran the Iranian operation, with multiple counts of unauthorized disclosure of national defense information, mail fraud, and obstruction of justice.

Prosecutors pieced together circumstantial evidence that Mr. Sterling was a key source for Risen’s book. They could present the circumstantial evidence at Sterling’s trial and a jury might convict him. But the prosecutors also wanted direct evidence of the alleged crime. They sought to compel Risen’s testimony under oath that Sterling was the source of the leaked secret information.

They argued that Risen was the only witness to the offense.

Risen refused to appear, citing a general reporter’s privilege against being forced to disclose the identity of a confidential source.

A federal judge agreed with Risen, but a panel of the Fourth US Circuit Court of Appeals voted 2 to 1 to reverse that decision. The appeals court said the US Supreme Court has never recognized a privilege that would excuse a journalist from being required to provide truthful testimony at a criminal trial.

According to briefs filed at the Supreme Court, 49 states have passed some form of reporter’s privilege shielding journalists from having to reveal their sources in court. Nonetheless, the appeals court concluded that a 1972 Supreme Court precedent in a case called Branzburg v. Hayes establishes that reporters may be forced to reveal their sources or face open-ended jail terms.

US Solictor General Donald Verrilli urged the high court to reject Risen’s petition. In his brief, he quoted the high court’s decision in Branzburg: “We cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.”

The high court said that reporters, like any other citizens, must respond to questions before a grand jury or in a criminal trial.

Friend of the court briefs filed in support of Risen’s petition had urged the high court to take up the case with an eye toward revising or overturning the Branzburg decision.

“Recognition of a journalist’s privilege serves powerful public and private interests,” Theodore Boutrous wrote in an amicus brief on behalf of the International Women’s Media Foundation.

“Protecting journalists from compelled disclosure of confidential source information fosters First Amendment freedoms and serves the health of our democracy by ensuring our citizenry access to information needed to make informed political, social, and economic choices,” Mr. Boutrous wrote.

Risen’s lawyer, Joel Kurtzberg, offered a similar argument in his petition.

“Countless stories of tremendous historical significance – the Watergate break-in and cover up, the abuse of prisoners at Abu Ghraib, the CIA’s waterboarding of terrorism suspects, the existence of secret CIA prisons in Eastern Europe, the NSA’s use of warrantless wiretaps on US citizens, and the systematic lack of adequate care for veterans at Walter Reed Army Medical Center to name just a few – would never have been written without the reporter’s ability to promise sources confidentiality and keep those promises,” Mr. Kurtzberg wrote.

Risen is not the only reporter to face compelled disclosure of his source.

A similar issue arose in 2005 when Judith Miller, also a New York Times reporter at the time, was ordered by a federal judge to reveal her source of information concerning the unauthorized disclosure of the identity of then-covert CIA officer Valerie Plame.

Ms. Miller refused to reveal her source and was sent to jail for contempt of court. She spent 85 days behind bars. She was released after her source, Scooter Libby, the former chief of staff of Vice President Dick Cheney, told her that she could disregard her earlier pledge of confidentiality.

She later testified and provided the requested information.

In the Risen case, prosecutors have obtained evidence that Sterling contacted Risen multiple times by telephone and e-mail. From August 2003 to August 2004, the government says, 19 phone calls were made between Sterling’s home and the Times’s Washington news bureau.

The case was James Risen v. United States of America (13-1009).