DOJ’s News Media Policies Reserved the Authority to Force James Risen to Testify

James Risen’s lawyer, Joel Kurtzberg, argues that the News Media Policies released by DOJ last week mean his client should not have to testify in the Jeffrey Sterling case. (As I understand it, Michael Isikoff made a similar argument while moderating a panel including Eastern District of VA US Attorney Neil MacBride today too, though MacBride reportedly dodged any answer.) In a letter to the Fourth Circuit (which has been sitting on this decision for well over a year), he cites two paragraphs from the Policies — one affirming DOJ’s promise to access “member of the news media” materials only as a last resort, and another one calling for the “appropriate balance” between two competing interests of “protecting the American people” and “free press” — and then claims,

the standard that the DOJ now articulates in the report is the very same standard that the government argues should not be applied to Mr. Risen by the court in this case. The DOJ’s recent change in position is nothing less than an admission that the legal standard it asks this court to apply provides wholly inadequate protection for the interests at stake in this case.

Unfortunately, I think Kurtzberg misreads the way DOJ has specifically left Risen unprotected.

The first paragraph Kurtzberg cites ends,

The Department’s policy is to utilize such tools only as a last resort after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.

DOJ’s rules used to be interpreted to say sources would have to testify only if their testimony (or records) was necessary to identify their source or the content of the leak. This is the standard Leonie Brinkema used when she ruled Risen didn’t have to testimony because the government had already identified his source.

But with the language reserving the right to access journalist records or testimony if it is “essential to a successful prosecution,” DOJ has specifically reserved the right to do what they are doing in the Sterling case.

Indeed, their appeal of Brinkema’s decision argues that Risen must testify because it is crucial to the prosecution.

Risen is the only eyewitness to the crime and, as the recipient of the classified information at issue, he is inextricably linked to the criminal conduct. Risen’s testimony is the only direct evidence of Sterling’s guilt; no circumstantial evidence, or combination thereof, is as probative as Risen’s testimony or as certain to foreclose the possibility of reasonable doubt The information Risen can provide is therefore relevant and unavailable from other sources, and the government has demonstrated a compelling need for Risen’s testimony.

That is, even though DOJ has a slew of other evidence they say will prove Jeffrey Sterling was Risen’s source about a botched effort to deal Iran bad nuclear blueprints, they maintain Risen’s testimony is still irreplaceable for the trial.

They argue his testimony is “essential to a successful prosecution,” precisely one of the reservations DOJ included in their policies.

I’m not saying this is what the policy should be or that Risen’s testimony really is essential. I am saying DOJ seems to have included language that, according to them, at least, excludes Risen from protection.

I also am saying that journalists who celebrated these policies for their improvements in some areas have overestimated the degree to which DOJ really wants to change its approach to journalists involved in leak investigations.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

7 replies
  1. Frank33 says:

    The US Government needs to stop its criminality promoting and supporting terror. Jeffrey Sterling and James Risen are heroes for reporting nuclear terror. The CIA provided plans for a nuclear bomb? Why? To help Iran?

    That is a crime. Nuclear proliferation is a crime. And the Plans were also classified information. The CIA leaked classified information, about building a nuclear bomb. Anyone else could have gotten copies of the plans. The CIA are insane for spreading nuclear weapon technology.

    We were told by blabbermouth Brennan that Undie #2 was a False Flag attack, that the AP interfered with. Does the CIA want Iran to attack us with a nuclear bomb. Or will the Cheney’s try to swipe another nuclear bomb? Risen and Sterling interfered with a CIA nuclear terror operation.

  2. earlofhuntingdon says:

    That the testimony be, “essential to a successful prosecution,” is an exception that swallows the rule; it’s a claim every prosecutor would make as routinely as overcharging.

  3. Frank33 says:

    Gosh, I wonder if my comment had “key words”, that alert the automatic censors of our overlords to forbidden topics…Cheney’s kill. Al-Mihdhar and al-Hazmi. Riggs Bank. Graham Fuller. Operation Earnest Voice. Edward Snowden Gonzo Patriot. TIA…

  4. cymack says:

    @Frank33: Frank, let me help.

    It might provide you with some relief to know that, based on this list from last year, there’s no need for a person to strain in the recruitment of blizzards of suspicious literary devices in order to find herself in breach of that edition of Homeland security’s threat exercise. The mere attempt at using an enriched vocabulary, or maybe one that precisely targets the subject in question, such as might arise in an exchange with one’s doctor or a sick acquaintance, seems to be enough.

    Of course, it should be noted that there has probably been an update to this little drill, since it was published, not as a leak, but in response to a FOIA application. Take that for what it’s worth.

    Anyway, I must wave farewell, as those graphs, unlike some of our more hapless youths, aren’t going to plot themselves.

  5. Frank33 says:

    You cannot fix stupid. This General Alexander, leading the NSA (KGB) admits he spies on everyone everywhere all the time. You especially cannot fix stupid Generals. And we have more corrupt and stupid Generals, , with their Fusion Centers and Biometrics, who do look for a needle in a haystack. They do not want to find some of the needles, such as the ones they create. This man is dangerous and is an enemy of the Constitution.

    The other enemies of the Constitution, NSA, CIA, Walmart Exxon, BP, NBC, Monsanto, should be torn into a thousand pieces and scattered into the wind.

    General Alexander spoke in defense of the N.S.A.’s surveillance programs, including its collection of a vast database of information about all phone calls made and received in the United States. “You need a haystack to find a needle,” he said, even while acknowledging that he was open to the idea that the nation’s telecommunications companies, rather than the government, should retain control of the data.

  6. thatvisionthing says:

    @Frank33: Maybe you need a haystack to cover you making needles? “Thar be needles,” said darkly. “And witches.” And there they are to divine and pronounce.

    Maybe that’s a cover over a cover, and they’re really there in the dark spinning all that hay into gold. And if you guess their name and say it out loud, man do they get pissed.

    Thanks, Congress, prez, courts. Heckuva treason. Box of beads for that old piece of paper you weren’t using anyway. So much shinier.

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