Judge Agrees to Limit Writer’s Testimony

A federal judge dealt a setback on Friday to the Obama administration’s crackdown on the leaking of government secrets to journalists, sharply limiting what prosecutors can ask the author of a book about the C.I.A. in court.

Judge Leonie M. Brinkema of the Federal District Court in Alexandria, Va., issued an order that had been sought by the author, James Risen — who is also a reporter for The New York Times — restricting his testimony in the trial of a former Central Intelligence Agency official, Jeffrey A. Sterling, who is charged with providing classified information to Mr. Risen.

Specialists in media law portrayed the ruling as highly unusual, saying it could set an important precedent. While many states have so-called media shield laws that allow judges to quash subpoenas ordering reporters to testify about their sources by balancing the needs of prosecutors with the public interest, the federal government has no such statute.

“I think it’s an important victory for the First Amendment and for freedom of the press,” Mr. Risen said. “The protection of sources will allow for the American press to continue to find and report the truth.”

Federal prosecutors could appeal the judge’s decision. Alisa Finelli, a Justice Department spokeswoman, declined to comment on the ruling.

Prosecutors have charged Mr. Sterling with being a source for a chapter in Mr. Risen’s 2006 book, “State of War: The Secret History of the C.I.A. and the Bush Administration.” The chapter details an effort by the intelligence agency to sabotage Iranian nuclear research in 2000, portraying the operation as botched in a way that may have helped Iranian scientists gain valuable information about building a nuclear triggering device.

The Justice Department has been trying to force Mr. Risen to testify about his source for the chapter — or at least to provide details about when and where he learned specific facts — for several years, dating back to the Bush administration. Judge Brinkema had earlier quashed a grand jury subpoena issued to Mr. Risen, saying his testimony was unnecessary to indict Mr. Sterling.

In fighting a later subpoena compelling him to testify during the trial, Mr. Risen had offered to testify only that he wrote a particular article or a particular chapter in his book and that what he said in those publications about anonymous sources for his reporting was accurate. But he said that providing more details would allow the identification of his confidential source, which would jeopardize Mr. Risen’s ability to be an investigative journalist.

Judge Brinkema’s order agreed with his proposal for strictly limited testimony. Her opinion explaining her ruling has not yet been made public.

“I’m aware of no other case of this magnitude in a federal criminal case where a reporter’s subpoena has been quashed at both the grand jury and trial level,” said Joel Kurtzberg of Cahill Gordon & Reindel, an attorney for Mr. Risen. “It is a big deal.”

The case against Mr. Sterling, and the effort to subpoena Mr. Risen, is led by William M. Welch II, a federal prosecutor who has handled several recent high-profile leak investigations. Prosecutors have charged five government employees in connection with the disclosure of classified information to the news media under President Obama, more than all previous presidents combined.

Mr. Welch also led the prosecution of Thomas Drake, a former National Security Agency official accused of leaking information about enormous cost overruns and mismanagement at that agency to The Baltimore Sun. Earlier this month, Mr. Drake — who had faced up to 35 years in prison — was sentenced to a year’s probation after the government’s case against him largely collapsed.

Lucy A. Dalglish, the executive director of the Reporters Committee for Freedom of the Press, said the ruling on Friday “sets a very welcome precedent” because it demonstrated that judges could balance the public’s interest in investigative reporting against claims by prosecutors that forcing a reporter to testify was necessary to protect national security.

“It proves that judges can look at these cases and make decisions about whether or not subpoenas are reasonable,” Ms. Dalglish said. “It shows that judges can act independently and are not just going to rubber-stamp a subpoena that comes out of a prosecutor’s office and approve it just because they say they have to have it for some national security reason. It’s really remarkable.”

[Source: By Charles Savage, The New York Times, 29Jul11]

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