Secrecy: Leaks Prosecutions

CA4 Opinion in U.S. v. Sterling: No 1st Am, Common Law Journalist's Privilege for James Risen

By Wells Bennett
Friday, July 19, 2013, 3:01 PM

It's a big news day in national security law for all kinds of reasons---one being today's opinion from the Fourth Circuit in United States v. Sterling.  

That, of course, is the prosecution against a former CIA officer under, among other things, Sections 793(d) and (3) of the Espionage Act.  In essence the government claims that Sterling unlawfully furnished classified material to New York Times reporter James Risen---who in turn published it in a chapter of his 2006 book,  State of War: The Secret History of the CIA and the Bush Administration.    

Today's decision was long-brewing.  We at Lawfare last glanced at the case in 2011, when the district court largely quashed a trial subpoena issued to Risen.  That ruling was followed by two others, one suppressing the testimony of two government witnesses, as a sanction for the government's violation of the Supreme Court's Giglio decision regarding the disclosure of impeachment material; and another denying a government motion, under the Classified Information Procedures Act ("CIPA"), to withhold from the jury and Sterling certain information regarding the identity of anticipated intelligence community witnesses.

The gist of today's Russian-doll like decision---it is really two opinions in one--is as follows:

In a majority opinion written by Chief Judge Traxler, we now reverse the district court’s order holding that Risen has a reporter’s privilege that entitles him to refuse to testify at trial concerning the source and scope of the classified national defense information illegally disclosed to him (Issue I).  In a separate majority opinion written by Judge Gregory, we reverse the district court’s order suppressing the testimony of the two Government witnesses (Issue II), and affirm in part and reverse in part the district court’s CIPA ruling (Issue III).

Here is a bit more from the two-judge majority's analysis, and rejection, of the journalist's claim under the First Amendment:

The controlling majority opinion in Branzburg and our decision in Shain preclude Risen’s claim to a First Amendment reporter’s privilege that would permit him to resist the legitimate, good faith subpoena issued to him.  The only constitutional, testimonial privilege that Risen was entitled to invoke was the Fifth Amendment privilege against self incrimination, but he has been granted immunity from prosecution for his potential exposure to criminal liability.  Accordingly, we reverse the district court’s decision granting Risen a qualified First Amendment reporter’s privilege that would shield him from being compelled to testify in these criminal proceedings.

I suspect we'll have more to say about the case in the near future.  But in the meantime---and having only thumbed through the decision---it appears to me that a big win for journalists has been overturned.