http://www.politico.com/news/stories/0211/50168.html

Feds spy on reporter in leak probe

By: Josh Gerstein

February 24, 2011

Federal investigators trying to find out who leaked information about a CIA attempt to disrupt Iran's nuclear program obtained a New York Times reporter's three private credit reports, examined his personal bank records and obtained information about his phone calls and travel, according to a new court filing.

The scope and intrusiveness of the government's efforts to uncover reporter James Risen's sources surfaced Thursday in the criminal case of Jeffrey Sterling, a former CIA officer facing federal criminal charges for allegedly disclosing classified information. Sterling is accused of giving Risen details about what Risen describes as the CIA's plan to give Iran faulty nuclear blueprints, hoping to temporarily thwart the regime's ambitions to build an atomic bomb.

In a motion filed in federal court in Alexandria, Sterling's defense lawyers, Ed MacMahon Jr. and Barry Pollack, reveal that the prosecution has turned over "various telephone records showing calls made by the author James Risen. It has provided three credit reports--Equifax, TransUnion and Experian--for Mr. Risen. It has produced Mr. Risen's credit card and bank records and certain records of his airline travel."

The revelation alarmed First Amendment advocates, particularly in light of Justice Department rules requiring the attorney general to sign off on subpoenas directed to members of the media and on requests for their phone records. And Risen told POLITICO that the disclosures, while not shocking, made him feel "like a target of spying."

"We've argued that I was a victim of harassment by the government. This seems to bolster that," Risen said. "Maybe I should ask them what my credit score is."

Sterling's attorneys and a Justice Department spokeswoman declined POLITICO's request for comment.

The government's interest in Risen's sources for his 2006 book, "State of War," has been known since 2008. In particular, investigators have zeroed in on a chapter which details what Risen describes as a botched CIA effort to trip up Iran's nuclear program. The scheme involved using a Russian defector to deliver the faulty blueprints to the Iranians, but the defector blew the CIA's plot by alerting the Iranians to the flaws -- negating the value of the program, and perhaps even advancing Iran's nuclear ambitions.

Risen was twice subpoenaed to appear before a grand jury to testify about his sources, but the first grand jury dissolved before a judge acted on Risen's motion to quash the subpoena. Last year, U.S. District Court Judge Leonie Brinkema sided with Risen and quashed the second subpoena, though details of her reasoning haven't been made public.

Soon after that decision, Sterling was indicted.

First Amendment advocates said the Justice Department's use of business records to find out about Risen's sources was troubling. Those records, they argue, could potentially expose a wide array of Risen's sources and confidential contacts -- information that might fall beyond the initial investigation that led to Sterling's indictment.

"To me, in many ways, it's worse than a direct subpoena," said Jane Kirtley, a University of Minnesota law professor and former director of the Reporters Committee for Freedom of the Press. "Third-party subpoenas are really, really invidious.... Even if it is targeted, even if they're trying to just look at the relevant stuff, they're inevitably going to get material that exposes other things."Kirtley also said journalists often aren't notified when the government asks telecom companies, banks or other service providers for their records.Asked how journalists could credibly complain about such techniques when most also refuse more direct demands for information about their sources, Kirtley said reporters who become the focus of determined investigators face a "Hobson's choice."

"It's the same thing as if the cops go to someone's office with a search warrant and say, ‘Give us the information we want and we won't tear the place apart,'" she said. "If you say ‘tear the place apart,' all kinds of confidential information that you don't think the police should have is going to end up in their hands."

Lawyers tracking the case believed that both former Attorney General Michael Mukasey, who was part of the Bush administration, and current Attorney General Eric Holder gave the go-ahead to subpoena Risen. Under Justice Department rules, the attorney general must approve a subpoena for a journalist and grant permission to obtain "telephone toll records of a member of the news media."

It's unclear whether the records investigators obtained about Risen's phone calls came from his billing records or from records of incoming calls to Sterling or others. The Justice Department guidelines for investigations affecting journalists don't appear to address travel, bank or credit card records.

Risen said the government never notified him that they were seeking his phone records. But he said he got an inkling in 2008 that investigators had collected some information about his calls.

"We heard from several people who had been forced to testify to the grand jury that prosecutors had shown them phone records between me and those people--not the content of calls but the records of calls," he said. "As a result of what they told us, my lawyers filed a motion with the court as asking how the Justice Department got these phone records and whether or not they had gotten my phone records."

"We wanted the court to help us decide whether they had abided by the attorney general's guidelines," Risen said. "We never got an answer from the court or the government."

The new defense filings also offer the first official confirmation that Risen's work was the focus of the investigation that led to the charges against Sterling. In addition to the phone, travel and financial records, Sterling's defense said the prosecution handed over a copy of the cover of Risen's book along with receipts and shipping records showing it was sold in Virginia.

While those familiar with the case immediately concluded that Sterling was a source for Risen, the journalist who got classified information from Sterling was referred to simply as "Author A" in the indictment, and was not named. Justice Department policy generally bars naming unindicted individuals in an indictment.

From 2004 to 2006, the New York Times fought a court battle to keep federal prosecutor Patrick Fitzgerald from obtaining the telephone records of Times reporters Judith Miller and Philip Shenon. Fitzgerald wanted the information to help find out who leaked information that tipped off Islamic charities about federal raids on their offices.

A district judge ruled in the Times' favor, but a federal appellate court overturned that decision. Fitzgerald ultimately obtained the records when the Supreme Court declined to step in; no one was ever charged for the leak.

Sterling's indictment suggests that Risen urged the Times to publish details about the CIA's attempt to stop Iran's nuclear program, but Times editors declined after senior U.S. government officials warned that the disclosure could harm national security and endanger the life of the Russian intermediary. The information later appeared in Risen's book.

The new details about the FBI's investigation of Risen came in a motion that called on the government to provide more details about what specific information Sterling allegedly disclosed. Sterling's lawyers also filed a series of other motions challenging several counts of the indictment as duplicative. Some also sought to punish Sterling for acts he did not commit, such as Risen's publication of the book, the defense argued.