http://www.nytimes.com/2012/02/22/us/diverse-media-groups-unite-on-confidential-sources-issue.html

February 21, 2012

Media Groups Unite on Protecting Sources

By CHARLIE SAVAGE

WASHINGTON -- A broad coalition of media organizations -- including The New York Times -- urged a federal appeals court on Tuesday to protect an investigative reporter from being forced to testify about his confidential sources, rejecting the Justice Department's claim that journalists have no such protections in criminal trials.

At issue is whether James Risen, a New York Times reporter, must testify about the sourcing for a chapter in his 2006 book, "State of War," detailing what it portrays as a botched Central Intelligence Agency effort to sabotage Iranian nuclear research. Prosecutors want him to be a witness in the trial of Jeffrey A. Sterling, a former C.I.A. operative charged with leaking the classified information to him.

Last year, Judge Leonie M. Brinkema of the United States District Court in Alexandria, Va., ruled [1] that Mr. Risen was protected by a qualified "reporter's privilege" that allowed her to balance whether it was necessary to force him to disclose his sources. She contended that Mr. Risen's testimony was not crucial because prosecutors could use other evidence against Mr. Sterling.

The prosecutorial team, led by William M. Welch II of the Justice Department's criminal division, has appealed that ruling, [2] arguing that no reporter's privilege exists in criminal trials. Prosecutors argued that if a reporter witnessed a crime -- in this case, the unauthorized disclosure of classified information -- then he could be subpoenaed to testify about it just like anyone else.

But in a friend-of-the-court brief [3] filed on Tuesday before the United States Court of Appeals in Richmond, Va., more than two dozen news organizations argued that such a qualified reporter's privilege is crucial for the "dissemination of news and information to the public" and contended that the Justice Department's portrayal of the law was "simply incorrect."

The brief by prosecutors cited several precedents, including a landmark 1972 Supreme Court decision, holding that there is no reporter's privilege against testifying before a grand jury. But the media organizations argued that criminal trials were different, and cited examples of appeals courts invoking a balancing test when a reporter was called to testify about sources at a trial.

The organizations "are concerned that if this court adopts the government's unprecedented position -- that journalists do not possess a qualified privilege that protects them against the compelled disclosure of confidential sources in criminal trials -- their ability to report on matters of substantial public concern will be significantly impaired," the brief argued.

Signatories included parent companies of major broadcast news outlets like ABC, CBS, CNN, Fox News, National Public Radio and NBC, and print media including The Associated Press, Bloomberg, Hearst, McClatchy, Newsweek, The New York Daily News, Reuters, Scripps-Howard, Time, the Tribune Company, The Wall Street Journal and The Washington Post.

Prosecutors are appealing two other rulings by Judge Brinkema, including one barring them from using two witnesses because they missed a deadline for giving the defense team information that could be used to call their testimony into question. The prosecutors said her rulings, if let stand, "effectively terminated the prosecution" of Mr. Sterling.

[1] http://mediadecoder.blogs.nytimes.com/2011/08/03/judge-explains-letting-a-reporter-protect-his-source/

[2] https://www.documentcloud.org/documents/296358-govt-brief-in-sterling.html

[3] https://www.documentcloud.org/documents/296540-media-amici-brief-sterling-risen.html