July 5, 2011
Feds: NYT's decision to kill story hurts Risen's case
By JOSH GERSTEIN
The New York Times's decision not to publish a story about a top secret Central Intelligence Agency program targeting Iran's nuclear efforts undercuts Times national security reporter James Risen's arguments that he should not have to testify in court about the sources for the information, federal prosecutors suggested in a new legal filing.
The brief filed Friday afternoon [1] by prosecutors pursuing criminal leak charges against former CIA officer Jeffrey Sterling points out that the Times decided in 2003 not to run a story about Operation Merlin, a CIA scheme hatched in the late 1990s to give Iran flawed nuclear designs. Risen revealed the CIA effort in a 2006 book, "State of War," and said it may have backfired, since an intermediary pointed out the flaws to the Iranians.
Prosecutors issued a subpoena to Risen last month [2] and are seeking to force him to testify about his anonymous sources for the information. Risen has asked U.S. District Court Judge Leonie Brinkema to throw out the subpoena. A hearing on the dispute is set for Thursday in Alexandria, Va.
In their filing, prosecutors called the Times's decision not to publish "noteworthy." They did not elaborate on why, but the reference appeared amid the government's effort to rebut Risen's claims that his disclosures about the CIA program were newsworthy, a factor some courts have considered when addressing a bid such as Risen's to keep his sources confidential under a so-called reporter's privilege.
A court opinion unsealed last week [3] revealed that. at a meeting in April 2003. top Bush administration officials -- including National Security Adviser Condoleezza Rice and CIA director George Tenet -- pleaded with Risen and then-Washington bureau chief of the Times Jill Abramson not to disclose the CIA operation because doing so could compromise national security. About a week later, Abramson advised the government that the Times "had decided not to publish the story," the opinion said.
In response to a query from POLITICO, a spokeswoman for the Times said the newspaper would not comment on the episode.
Through his attorney, Risen has also declined to comment on the decision. However, in court papers he said that the passage of time had diminished the sensitivity of details of the operation and that other developments made the operation more newsworthy by the time his book was published.
While the government's brief contends that the Supreme Court has ruled that reporters' confidential sources are entitled to no protection in a criminal investigation, prosecutors devote a considerable amount of their filing to arguing that Risen could provide useful testimony in the case without directly identifying his source or sources about Operation Merlin.
Indeed, the government notes that it already retreated once from its efforts to force Risen to unmask his sources. When prosecutors first sought Risen's testimony with a grand jury subpoena in 2008, they were pushing for the identities of his sources. But in 2010, in another bid to force Risen before another grand jury, prosecutors dropped the demand that the reporter identify his sources. At that time, they asked only that he verify the information in his book and describe "the 'what,' 'when,' 'how,' and 'where' regarding the disclosure of specific pieces of national defense information," the brief says.
The 2008 grand jury expired before the dispute over Risen's testimony was resolved. Last November, Brinkema ruled that Risen did not have to testify to the second grand jury. However, she said his testimony 'might well' be required [4] if the key suspect in the case, Sterling, was charged and went to trial. He was indicted a few weeks later.
In their new brief, prosecutors cited three other journalists for national news outlets who disclosed similar details about their confidential sources while stopping short of naming their sources directly. Prosecutors submitted to Brinkema depositions that Michael Isikoff, Daniel Klaidman and Toni Locy gave in a civil suit that scientist Stephen Hatfill brought against the government over statements that linked him to the 2001 anthrax attacks.
Isikoff, formerly at Newsweek and now at NBC News; Klaidman, managing editor of Newsweek; and Locy, formerly of USA Today and now a journalism professor at Washington & Lee University, described their sourcing, using pseudonyms and explaining where specific information in their stories came from.
"There is no reason to treat Risen any differently than other award-winning journalists who have answered under oath similar sorts of questions," prosecutors wrote. "This Court should not countenance anything less, particularly in a criminal matter."
In the brief, prosecutors dwell at some length on their claims that Sterling gave Risen "false and misleading" information about the Merlin project and one of the CIA's "human assets."
"Because the First Amendment does not protect the dissemination of false information ... public policy dictates that a qualified reporter's privilege rooted in the First Amendment and invoked to protect the dissemination of false information must lose its force," prosecutors argued.
Since false information cannot be classified, the government's claims about Sterling's alleged lies appear aimed at establishing his motive for leaking. Prosecutors contend that the ex-officer was angry at the CIA over his longstanding complaint that -- as an African-American -- he suffered racial discrimination there. A lawsuit Sterling brought over the alleged discrimination was thrown out after the government said allowing the case to proceed would disclose state secrets.
The prosecution also made explicit in Friday's brief that the government alleges that Sterling served as an anonymous source for classified information in a separate story Risen wrote in the Times in November 2001, [5] revealing that the CIA "clandestine New York station" was located in one of the World Trade Center buildings destroyed in the Sept, 11, 2001, attacks.
In their brief, prosecutors also appeared to confirm that Sterling's wife testified before the grand jury investigating him and that her testimony would likely not be available at trial because of spousal privilege. And prosecutors said a former intelligence official whom Risen consulted while reporting on Operation Merlin and who apparently learned at that time that Sterling was a source for Risen would probably not be able to testify about that fact at trial because of hearsay rules. As a result, the government said, Risen's testimony is now even more crucial to their case against Sterling.
[1] http://www.politico.com/static/PPM170_110705_sterlingrisenrpy.html
[2] http://www.politico.com/news/stories/0511/55608.html
[3] http://www.politico.com/static/PPM170_risenbrinkema2010rlg.html