- The Washington Times - Monday, November 4, 2013

New York Times reporter James Risen does not have to testify on national security leaks until the Supreme Court hears his appeal in the case, a federal appellate court ruled Monday.

The court ruled that a July lower court order that Mr. Risen must testify in the criminal case against CIA operative Jeffrey Sterling, who is accused of leaking national defense information for a chapter in Mr. Risen’s book, “State of War,” can be put on hold while the high court considers the reporter’s appeal.

Justice Department officials said Monday that the 4th Circuit Court of Appeals agreed with them that the July order requiring Mr. Risen to testify be stayed until he exhausts his efforts for Supreme Court review.

“We do not oppose [Mr. Risen‘s] request for a stay because, in our view, permitting him to exhaust his appellate remedies before trial would be in the interest of judicial efficiency,” a Justice Department statement said. “We do not, however, agree with [him] that his claims have potential merit or that the Supreme Court is likely to grant him relief.”


Mr. Sterling pleaded not guilty in federal court in 2011 after being indicted under the Espionage Act for disclosing national defense information, mail fraud and obstruction of justice. Prosecutors have cited emails and phone logs from 2003 to charge that Mr. Sterling leaked information to Mr. Risen about a botched scheme by the CIA to deceive Iranian scientists, but they also are seeking to compel the journalist’s direct testimony before a jury.

Mr. Risen has said he will go to jail rather than testify about his sources for the 2006 book, which was based in part on reporting he did while employed at The Times. He has argued that Justice Department guidelines regarding government investigation of the media prevents the government from forcing him to reveal sources.

Prosecutors argued in July that he cannot base his claim on a First Amendment privilege because he is the “only eyewitness to the crimes charged [against Mr. Sterling] in the indictment.” And although the Justice Department has acknowledged altering its internal guidelines regarding notice to reporters whose records the government is seeking, basic requirements of disclosure for information that is essential and unavailable from another source have not been changed.

The appellate justices agreed, ruling that, “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.”

But Monday’s ruling is an acknowledgment by the 4th Circuit that Mr. Risen should be allowed to seek Supreme Court review regardless of his ability to prevail before the high court.

“This court has not expressly interpreted its local rules to inflexibly require a [person making a motion] to show a likelihood of success before the Supreme Court as a prerequisite to a stay of mandate,” the court wrote.

The Justice Department declined to comment beyond the filing Monday.