A reporter is being forced to testify against his source

CIA Original Headquarters Building (CIA)
CIA Original Headquarters Building (CIA)

U.S. Circuit Court says reporter must testify against CIA leaker

A New York Times reporter who wrote a book on national security using an anonymous CIA agent who leaked him classified documents is being forced to testify in court.

The U.S. Court of Appeals 4th Circuit, in Virginia, said on Friday that reporter James Risen, who wrote the 2006 book “State of War,” must testify in court against his source, former CIA officer Jefrrey Sterling, since Sterling is being prosecuted in a criminal case.

Sterling has been charged under the Espionage Act.

In United States law, national security is placed at the pinnacle of law proceedings, making the stakes “higher” than in ordinary, civil cases.

As a result, a journalist’s normal “shields” are more heavily debated and can be broken in national security proceedings.

As the U.S. Appeals Court said, in its majority statement:

“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 about criminal conduct … even though the reporter promised confidentiality to his source.”

While that may be true —and can also be debated— if taken at face value then what is the point of having a First Amendment freedom of speech and of the press?

It’s like saying, “You have freedom of the press for normal cases but for important cases, when you need freedom of the press the most since there is a larger impact on the public, you’re out of luck.”

As noted in the dissenting opinion written by Judge Roger Gregory, if Deepthroat was concerned that what he would tell Woodward and Bernstein would definitely incriminate him in court later on, he may not have leaked classified information.

Information that was of vital importance to the American public.

As Gregory said, “The freedom of the press is one of our Constitution’s most important and salutary contributions to human history.”

Gregory notes that a free press helps America keep public officials and elected representatives accountable.

Whistleblowers, if they want, should be free to talk to reporters if they see something off going on in government. And reporters should not be forced to give up what that anonymous source told them in confidence.

The court said that Risen, a full-time New York Times reporter, must testify with what the former CIA agent told him in confidence.

The court is not ashamed while they want Risen to talk: They do not have a fully persuasive case without his testimony.

In other words, they need him for his information.

The court says, “The government seeks to compel evidence that Risen alone possesses — evidence that goes to the heart of the prosecution.”

The court lays out a lot saying that since this is a criminal case of national security, it is beyond a journalist’s privilege. It even has granted Risen immunity for himself, to try to entice him.

Yawn. America was founded on perhaps the highest amount of personal freedom imaginable at its time, and still serves as a compass for personal freedom.

Journalists, who serve as a public watchdog to tell citizens what is happening, deserve the freedom to dig into “classified” documents, when the situation presents itself (aka a CIA agent who gives a New York Times reporter a document saying that the government is mismanaging itself, which is of the public interest).

As Judge Gregory wrote, dissenting against his fellow judges, “Common sense tells us the value of the reporter’s privilege to journalism is one of the highest order.”

Let’s hope it stays that way.


Further reading, from “U.S. vs. Jeffrey Sterling”:

“It is ‘obvious and unarguable’ that no governmental
interest is more compelling than the security of the Nation.”
Haig v. Agee, 453 U.S. 280, 307 (1981).

GREGORY, Circuit Judge, dissenting as to Issue I:
“Today we consider the importance of a free press in
ensuring the informed public debate critical to citizens’
oversight of their democratically elected representatives.”

GREGORY: “A free and vigorous press is an indispensable part of a system of democratic government. Our country’s Founders established the First Amendment’s guarantee of a free press as a recognition that a government unaccountable to public discourse renders that essential element of democracy – the vote – meaningless.”

Gregory: “The freedom of the press is one of our Constitution’s most
important and salutary contributions to human history.”

Gregory: “Such reporting is critical to the way our citizens obtain information about what is being done in their name by the government.”

Scott Armstrong, executive director of the Information Trust and former Washington Post reporter, “[m]any sources require such
guarantees of confidentiality before any extensive exchange of
information is permitted.” J.A. 350.

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