NYT Reporter Takes First Amendment Fight to High Court

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Lawyers for a New York Times reporter tangled up in a fight with federal prosecutors urged the U.S. Supreme Court on Monday to undo an appeals court ruling that would force his testimony in a CIA leak prosecution.

A divided U.S. Court of Appeals for the Fourth Circuit in July overturned a trial judge's ruling that would have allowed James Risen to keep secret the source of information in his book about the George W. Bush administration and intelligence agencies. Risen's book, "State of War: The Secret History of the CIA and the Bush Administration," included details about the National Security Agency's warrantless wiretapping program.

Prosecutors want Risen to testify in the government's case against former CIA employee Jeffrey Sterling in federal district court in Alexandria, Va. Sterling is accused of leaking information to Risen about Iran's nuclear weapons program. He was arrested in January 2011 on charges that included disclosure of national defense information and obstruction of justice.

U.S. District Judge Leonie Brinkema determined that to "require a reporter to violate his confidentiality agreement with his source under these facts would essentially destroy the reporter's privilege." Brinkema quashed the trial subpoena.

Chief Judge William Traxler of the Fourth Circuit concluded, however, that journalists do not enjoy a First Amendment privilege "that protects reporters from being compelled to testify by the prosecution or defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in." Delivering a win to the U.S. Department of Justice, the court voided Brinkema's decision.

Risen's attorneys, including Cahill Gordon & Reindel partner Joel Kurtzberg, said in their Supreme Court petition that "the law governing the relationship between reporters and their sources has become increasingly less clear." Kurtzberg urged the justices to review the Fourth Circuit's decision, issued in July.

"In an area of the law where predictability is of paramount importance, the current state of the law is confused," Kurtzberg wrote.

Federal and state subpoenas demanding that reporters provide information have become "more widespread," Risen's attorneys told the justices. Forty-one of 67 subpoenas that newsrooms received in 2006, Kurtzberg wrote, sought information about confidential sources. "All indications are that this trend has continued and is not likely to wane."

The Fourth Circuit's decision, Risen's attorneys said in court papers, "directly conflicts with no less than six other courts of appeal." The challengers said the Second, Ninth and D.C. Circuits, for instance, recognize a qualified reporter's privilege in criminal proceedings. Those appellate courts, however, reject any such privilege in grand jury cases.

The case against Sterling is on hold pending resolution of the First Amendment fight. Prosecutors did not oppose Risen's request to stay the case. The government, however, disputed that there's any real controversy in the case.

"Even if a qualified privilege did exist, Risen still would not be entitled to relief in light of the panel’s factual determination that the government’s law-enforcement interests would overcome that privilege in the circumstances of this case," DOJ lawyer Robert Parker wrote in court papers in November in the Fourth Circuit.

Contact Mike Scarcella at mscarcella@alm.com. On Twitter: @MikeScarcella.

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