Related:
23 May 2011,
NYT: DOJ: US v. Sterling: James Risen Subpoena (PDF)
http://www.nytimes.com/2011/05/25/us/25subpoena.html
May 24, 2011
Subpoena Issued to Writer in C.I.A.-Iran Leak Case
By CHARLIE SAVAGE
WASHINGTON -- With the approval of Attorney General Eric H. Holder Jr., federal prosecutors are trying to force the author of a book on the C.I.A. to testify at a criminal trial about who leaked information to him about the agency's effort to sabotage the Iranian nuclear program at the end of the Clinton administration.
The writer, James Risen, a reporter at The New York Times, was served with a subpoena on Monday, ordering him to testify at the trial of Jeffrey Sterling, a former Central Intelligence Agency officer. Mr. Sterling was charged this year as part of a wider Obama administration crackdown on officials accused of disclosing restricted information to journalists.
The subpoena tells Mr. Risen that "you are commanded" to appear at federal district court in Alexandria, Va., on Sept. 12 to testify in the case. A federal district judge, Leonie M. Brinkema, quashed a similar subpoena to Mr. Risen last year, when prosecutors were trying to persuade a grand jury to indict Mr. Sterling.
Mr. Risen said he would ask the judge to quash the new subpoena, too.
"I am going to fight this subpoena," he said. "I will always protect my sources, and I think this is a fight about the First Amendment and the freedom of the press."
In a 30-page motion that prosecutors filed on Monday, they argued that the First Amendment did not give Mr. Risen the right to avoid testifying about his confidential sources in a criminal proceeding. The Justice Department argued that Mr. Risen was a witness and should be compelled to provide information to a jury "like any other citizen," contending that there was no basis to conclude "that the reporter is being harassed in order to disrupt his relationship with confidential news sources."
The motion also said that prosecutors anticipated a motion by Mr. Risen to quash the subpoena. If the court does not agree to do so and Mr. Risen still refuses to testify, he would risk being held in contempt. In 2005, a Times reporter, Judith Miller, was jailed for 85 days for refusing to testify in connection with the Valerie Wilson leak case.
Prosecutors believe that Mr. Sterling provided classified information to Mr. Risen that served as the basis for a chapter in his 2006 book, "State of War: The Secret History of the C.I.A. and the Bush Administration."
The chapter details an effort by the C.I.A. in 2000 to disrupt Iran's nuclear program by sending a former Russian scientist to give it blueprints for a nuclear triggering device with a hidden design flaw. Mr. Risen portrayed the operation as botched, saying the agency may have helped Iranian scientists gain valuable and accurate information.
The material in that chapter did not appear in The New York Times. Mr. Sterling's indictment said that Mr. Risen had worked on an article about the program in 2003, but that the newspaper decided not to publish it after government officials told editors that such a disclosure would jeopardize national security.
The Justice Department's motion said that prosecutors want Mr. Risen to testify about what Mr. Sterling allegedly told him -- and where and when specific information was provided; to authenticate his book and lay the foundation for admitting as evidence statements from the book; and to discuss his "pre-existing nonconfidential source relationship" with Mr. Sterling, including a newspaper article Mr. Risen wrote in 2002 about a civil lawsuit filed by Mr. Sterling.
Since President Obama took office, civilian and military prosecutors have charged five people in cases involving leaking information, more than all previous presidents combined. Several of those cases began under the Bush administration.
In several weeks, a former National Security Agency official, Thomas Drake, goes on trial on charges of providing classified information to The Baltimore Sun about cost overruns and mismanagement at the agency.
Mr. Risen has also written extensively about classified information involving the agency, including a series of articles that he and a colleague, Eric Lichtblau, wrote for The Times that exposed the agency's program of surveillance without warrants under the Bush administration. The series won the 2006 Pulitzer Prize for national reporting.
This year, another filing in the Sterling case disclosed that federal law enforcement officials had secretly gathered telephone records showing calls made by Mr. Risen, as well as his "credit card and bank records."
While Justice Department regulations instruct prosecutors to "ordinarily refrain" from issuing subpoenas to the news media, the rules also allow the attorney general to make exceptions.
"We make every reasonable effort to attempt to obtain information from alternatives sources before even considering a subpoena to a member of the press, and only seek information essential to directly establishing innocence or guilt," said Laura Sweeney, a department spokeswoman.