Court rules journalists can’t keep their sources secret
by alethoRT | July 19, 2013
A federal appeals court ruled Friday that New York Times
journalist James Risen must testify in the trial of a former Central
Intelligence Agency officer accused of leaking classified national
defense information to the media.
A
lower court ruled previously that Risen could protect the source
responsible for sharing intelligence about a CIA operation discussed in
his writing, but the US Court of Appeals from the Fourth Circuit
reversed that decision Friday morning with a 2-1 vote.
“The
reporter must appear and give testimony just as every other citizen
must. We are not at liberty to conclude otherwise,” Chief Judge William
Traxler Jr. wrote for the majority opinion.
The appeal panel’s decision came just days after United States Attorney General Eric Holder presented
President Barack Obama with a proposal that would re-shape current law
as it applies to journalists in order to more greatly ensure that
reporters aren’t targeted during investigations unless other routes are
exhausted first. That maneuver came on the heels of two highly public
recent Justice Department scandals in which the White House was revealed
to have subpoenaed the phones records for several Associated Press offices and also the email history of Fox News reporter James Rosen.
"Journalists
should not be at legal risk for doing their jobs. Our focus must be on
those who break the law," Obama said during a May 23 address after those scandals first surfaced.
With
Friday’s ruling, the appeals court weighed whether or not an
established precedent would prevent Risen from being asked to disclose
the source of his information, but Traxler said, “so long as the
subpoena is issued in good faith and is based on a legitimate need of
law enforcement, the government need not make any special showing to
obtain evidence of criminal conduct from a reporter in a criminal
proceeding.”
Next
Risen will be expected to testify in the Espionage Act-case against
Jeffrey Sterling, a former CIA official accused of disclosing details
about a Clinton administration plan to put faulty nuclear weapon
blueprints to Iran in an effort to slow down their race to acquiring a
nuke. He previously said he’d refuse to speak of his source, however,
which would now open up the possibility of being held in contempt of
court.
Sterling
is one of seven persons accused by President Barack Obama of spying
under the Espionage Act, a World War One-era legislation that has
previously been used only three times before this administration began
targeting leakers.
Judge
Roger Gregory, the only justice to vote in the minority, said
compelling Risen to testify was a “sad” decision that posed a serious
threat to investigative journalism, the Times reported.
“Under
the majority’s articulation of the reporter’s privilege, or lack
thereof, absent a showing of bad faith by the government, a reporter can
always be compelled against her will to reveal her confidential sources
in a criminal trial,” Gregory wrote. “The majority exalts the interests
of the government while unduly trampling those of the press, and in
doing so, severely impinges on the press and the free flow of
information in our society.”
Judge
Traxler disagreed, however, and along with Judge Roger Gregory wrote
that even the US Constitution can’t keep Risen from being asked to take
the witness stand.
“There
is no First Amendment testimonial privilege, absolute or qualified,
that protects a reporter from being compelled to testify by the
prosecution or the defense in criminal proceedings about criminal
conduct that the reporter personally witnessed or participated in,
absent a showing of bad faith, harassment, or other such non-legitimate
motive, even though the reporter promised confidentiality to his
source,” Traxler wrote.
Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press, told the Times
he viewed the verdict as “disappointing,” and even suggested it was a
step-backwards only so few days after Holder’s alleged effort to ensure
the privacy of sources and reporters.
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