Fourth Circuit Guts National Security Investigative Journalism Everywhere It Matters

The Fourth Circuit — which covers CIA, JSOC, and NSA’s territory — just ruled that journalists who are witnesses to alleged crimes (or participants, the opinion ominously notes) must testify in the trial.

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 that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.

With this language, the Fourth applies the ruling in Branzburg — which, after all, pertained to the observation of a drug-related crime — to a news-gathering activity, the receipt of classified information for all the states in which it most matters.

The opinion goes on to echo DOJ’s claims (which I recalled just yesterday) that Risen’s testimony is specifically necessary.

Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.


There is no dispute that the information sought from Risen is relevant. Moreover, it “can[not] be obtained by alternative means.” Id. at 1139. The circumstantial evidence that the government has been able to glean from incomplete and inconclusive documents, and from the hearsay statements of witnesses with no personal or first-hand knowledge of the critical aspects of the charged crimes, does not serve as a fair or reasonable substitute.


Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information. And it was through the publication of his book, State of War, that the classified information made its way into the public domain. He is the only witness who can specify the classified information that he received, and the source or sources from whom he received it.


Clearly, Risen’s direct, first-hand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony.

This language will enhance the strength of the reservation DOJ made to its News Media Policies, allowing it to require testimony if it is essential to successful prosecution.

The only limit on the government’s authority to compel testimony under this opinion is if the government is harassing the journalist, which (with proof of the way the government collected phone records, which remains secret) might have been proven in this case. There is a strong case to be made that the entire point of this trial is to put James Risen, not Jeffrey Sterling, in jail. But Leonie Brinkema has already ruled against it. I think the subpoena for 20 AP phone lines might rise to that level as well, except that case is being investigated in the DC Circuit, where this ruling doesn’t apply.

This pretty much guts national security journalism in the states in which it matters.

Golly. It was just last week when the press believed DOJ’s News Media Guidelines would protect the press’ work.

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.

32 replies
  1. JTMinIA says:

    Given how the DOJ has been treating journalists lately, can folks like Risen just take the stand, as required by this ruling, and then plead the Fifth?

  2. Clark Hilldale says:

    Needless to say, with this ruling (especially now with this ruling), the reporter can still assert his/her Fifth Amendment rights should this situation arise.

  3. Frank33 says:

    Sorry, Patriot Treason Act, says that Amendments One through Ten, are written on a goddamn piece of paper. Americans cannot be allowed to stop the Corporate Mandate, of permanent wars for resources and world domination by Oil Companies.

  4. darms says:

    So why then wasn’t Zimmerman compelled to testify? He was the ‘sole (surviving) witness’…

  5. Dan says:

    Risen’s response should be; ‘to the best of my knowledge I witnessed no crime and since the government on multiple occasions referred to me as a co-conspirator in this matter, I plead my fifth amendment rights to not testify.’

  6. orionATL says:

    there is no legal or logical reason why the judges could not have carved out an exception to the “witness to a crime” to favor reporters, and whistleblowers to boot.

    that they refused to do so in a time period in our history when the power of the state over individuals has been increased logarithmically in 12 years by two presidents and six congresses says a lot about the judges.

    it says far too many at the higher levels are narrow legal specialists with incompetent politica/social policyl sensibilities.

    it says the judges are more concerned about protecting their judicial kingdom by avoiding a conflict with the executive than they are with justice and fair treatment for individual citizens.

    it says the judges are comfortable with not imposing limits on the executive even at this manifestly dangerous time in our history when the power of the presidential executive has suddenly exceeded all safe limits and the balance between congressional, legislative, and judicial has been entirely subverted by an imperious presidency .

  7. What Constitution says:

    This opinion goes away two weeks after somebody invokes it to charge ABC News’ Brian Ross for aiding and abetting/co-conspirator for not turning in the “four high-ranking government officials” who falsely told him there was “bentonite in the anthrax suggesting Iraqi origin” in 2001.

  8. C says:

    @bittersweet: Sadly in one recent case, whose name escaped me, the government argued and won on the claim that invoking the fifth is an admission of guilt.

    This is why judician nominations matter.

    This is the legacy of judicial planning. Put enough pro-“national security” justices in office and then just wait for them to be given the opportunity and they’ll take it.

  9. thatvisionthing says:

    @What Constitution:

    the “four high-ranking government officials” who falsely told him there was “bentonite in the anthrax suggesting Iraqi origin” in 2001.

    Oh snap! Let me guess, all road signs “to Iraq,” should truth, whole truth and nothing but the truth be known, would lead to Cheney. Can we look forward to a court going there now?

    Glenn Greenwald, 2007: Over the weekend, I spoke via e-mail with M.A. Holmes, a Geologist in the Department of Geosciences at the University of Nebraska-Lincoln, who wrote:

    Bentonite is mined and used for drilling mud (getting the rock chips out of a drill hole when drilling for oil or deep water) and now is mined for the clumping-type kitty litter (“swells when wet”). It’s also used to draw cactus spines put of the skin (sold as a product called “Denver Mud”). It has lots of other uses, like lining pits for waste disposal (because it “swells when wet” it forms a pretty good seal).

    Bentonite is mined extensively in Wyoming and oh, yes, SOUTH DAKOTA. It is not “a chemical additive” and it is not unique to Iraq. It is widespread and common, and readily available wherever you can get “drilling mud.”

    One ironic fact that illustrates just how commonplace is bentonite is this 2004 Washington Post profile of Dick Cheney, in which his wife, Lynne, fondly recalled the early years of their relationship: “I knew when he was digging ditches out at the Central Wyoming Fair and Rodeo Grounds. And I knew him when he was loading bentonite, hundred-pound bags of bentonite, onto railroad cars.”

    Like, me, I would have capitalized and bolded WYOMING and CHENEY, but South Dakota musta been because Daschle D-SD got one of the anthrax letters.

    (Lynne’s quote in WaPo actually goes on: “And I knew him when he was building power line across the West to help pay his way through school.”)

  10. Bay State Librul says:

    I hate to say but it’s 100 degrees and I’m sucking down some Bud Black Crowns.
    Who the fuck cares about national security, it’s so fucked up and complicated.
    Why not have a Bmaz trash talk party
    I’m so lucky, I got tickets to Red Sox-Yankee’s game on
    Life is to short to analyze some many problems.
    Time to chill

  11. joanneleon says:

    “This pretty much guts national security journalism in the states in which it matters.”

    What does “in the states in which it matters” mean?


  12. C says:

    @JohnT: Well to be fair to the big talker these judges probably predated him. To be honest though he has neither invested much effort in getting new judges confirmed, preferring instead to keep saying “obstructionizzm,” and has actively championed this kind of reasoning in court allowing him to work with existing judges to make things worse for those who care about oh say the civil liberties that are the essential foundation of a free democracy.

    So yeah, how’s that working out? Not good.

  13. jo6pac says:

    So let see if I have this right.
    1. A few days ago doj come out with guide lines on who is a journalist. Sorry none of you dirty bloggers need to apply.
    2. To day there a no journalist only dirty traders against the govt.

    Yep sound like 0 govt. of nothing but transparency, hopism and changie thingy is going along just fine.

    C on, it’s working just the way 0 wants it and so do his puppet masters.

  14. c says:


    C on, it’s working just the way 0 wants it and so do his puppet masters.

    Either that or noone has told him that it isn’t working. That would after all explain why he periodically gives a statement about transparency, oversight, the rule of law, etc. that sounds so out of touch.

  15. Snoopdido says:

    This is off topic, but Wired has a good piece up entitled “NSA Phone Snooping Cannot Be Challenged in Court, Feds Say” at

    The US government’s filing ( has some fantasy-based arguments in it that are worth reading, and on page 3 the government says this:

    “Scheduling: Although defendants’ response to the complaint is due on August 23, defendants request that they be permitted to file a combined motion to dismiss and opposition to the contemplated motion for preliminary injunction on a date no sooner than September 16. We make this request because the presentation of our arguments may be influenced by an ongoing, multi-agency declassification review that will determine whether and, if so, to what extent additional pertinent information about the metadata program may become available. The Government is endeavoring to complete this review by September 3. Given the potential importance of this process to the presentation and consideration of the parties’ motions, the Government requests that its brief on these motions be due no earlier than September 16.”

    It’s anybody’s guess as to just what the US government multi-agency declassification review on their bulk metadata collection program(s) will produce for public consumption.

  16. Snoopdido says:

    @Snoopdido: In two related pieces there is this from the ODNI today “Foreign Intelligence Surveillance Court Renews Authority to Collect Telephony Metadata” at

    And this speech yesterday entitled “PRIVACY, TECHNOLOGY AND NATIONAL SECURITY: An Overview of Intelligence Collection by Robert S. Litt, ODNI General Counsel

    An Overview of Intelligence Collection

    Robert S. Litt, ODNI General Counsel

    Remarks as Prepared for Delivery

    Brookings Institution, Washington, DC

    July 19, 2013

    It’s located at,-technology-and-national-security-an-overview-of-intelligence-collection

  17. P J Evans says:

    We already know what it’s going to say ‘Nothing to see here, move right along. These are not the droids you’re looking for.’

  18. earlofhuntingdon says:

    This certainly shuts up Risen and his actual and potential sources for quite some time. More conveniently for the government, the knock-on effect will shut up a plethora of other reporters and their potential sources.

    Thousands of would be governmental leakers, who witnessed eight years of Bush era crimes, incompetence and greed – and their private sector colleagues (working, say, for Tysons or ConAgra or Monsanto) – now will have fewer people willing to listen to them. Shades of the CIA’s dismissal of Robert Redford’s leaking a crime “story” to a post-Watergate New York Times, in 1975’s Three Days of the Condor: “How do you know they’ll print it? You can take a walk. But how far if they don’t print it?”

    This ruling virtually requires reporters to disclose sources that the government alleges committed a crime by talking to or revealing information to that reporter. That gets us close to a de facto American Official Secrets Act.

  19. cwolf says:

    If I’m Risen, I split & just hang in Venezuela or wherever till this blows over.
    If he try’s to pull a Judith Miller he will get fucked.
    Miller was protecting Cheney’s boy so she was treated (relatively) well during her confinement.

  20. thatvisionthing says:

    @Snoopdido: Also, re Litt testifying at the House hearing on NSA oversight, and when I started reading his Brookings address. All the fine shmooze about how it’s legal, Congress authorized, Congress does oversight, necessary for national security, protecting America. Bullshit.

    I first noticed Litt’s name in 2010 when I was trying to follow Jesse Trentadue’s story, which I had heard in a radio interview. I’ve told this story before and I’ll recap again. Trentadue’s brother Kenney had been picked up for a parole violation at the San Diego border and oddly transferred to federal prison in Oklahoma in August 1995, where he was suicided in the course of (FBI?) interrogation. Family didn’t understand why, later got tip that Kenney had been mistaken for John Doe 2 of Oklahoma City bombing. Jesse, a lawyer, started FOIAing, from which he learned of “Trentadue mission” to quell Congressional oversight into his brother’s murder and the bombing – Eric Holder’s job when he was DAG in Clinton DOJ. When Holder was nominated for AG, Jesse wrote to Patrick Leahy asking to testify and appended copies of the FOIAed DOJ memos:

    No one could be less suitable to uphold the principles of justice in America than Eric Holder. And I would like the opportunity to appear before the Judiciary Committee to testify to that fact.

    – Jesse C. Trentadue to Patrick Leahy, December 19, 2008

    Page 23 of the PDF set is “Trentadue, trentadon’t” memo, from LITTROBE (echoing MARGOLIS joke on page 6). Hello.

    One of the things Jesse has kept FOIAing for and afaik has never gotten is unredacted surveillance video of the bombing. Feed goes black whenever truck would pass. Bad luck. x every video. But news reports at the time of the bombing spoke of video that reporters from the LA Times and others had seen or had described to them, and witness reports, of the Ryder truck and the bombing. Two persons were in it, and the one who apparently set off the bomb was John Doe 2. John Doe 2 was apparently a federal informant, among others, and govt knew months in advance that that building was being cased for bomb. Nichols said an informant supplied the detonators.

    So. There’s your protecting America, and there’s your congressional oversight. Bullshit. This is not something sideways. This is the thing itself.

    I wrote more here in 2010: . Two comments below that is OK local news recreation of the missing video, YouTube link and transcript. Comment above is about Congressional oversight (they might be informed six months after an intelligence operation is started) (letter to Congress from Robert Litt).

  21. thatvisionthing says:


    Fourth Circuit Endorses WikiLeaks

    by Kevin Jon Heller

    Well, not really. But that’s the unintended consequence of yesterday’s awful decision in US v. Sterling…

    If a journalist can be forced to testify against a whistleblower in a leak case because he “witnessed” the “crime,” there is only one solution for journalists who want to work with whistleblowers who expose government misconduct: obtain the information completely anonymously. If they do not know who provided the information, forcing them to testify will accomplish precisely nothing.

    In other words, WikiLeaks. That is now the only viable model of investigative journalism, given Sterling‘s overt attack on freedom of the press.

  22. thatvisionthing says:

    @thatvisionthing: Which is exactly what Julian Assange said in 2011 press call:

    JULIAN ASSANGE: So we can see already that the new Obama administration’s attempts to expand the 1917 Espionage Act into territory where it has normally never been permitted has had an effect on journalism.

    If that continues, and as Daniel Ellsberg suggested, if it continues and we see a conviction related to Bradley Manning or to one of our people in the United States or to myself or to James Risen or other media sources, it will put a chill across all investigative journalism if it’s in the U.S. The result of that is that whistleblowers will be unwilling to step forward to the mainstream press and inform the public about abuses that are occurring behind closed doors.

    Now, from our perspective, from WikiLeaks’ perspective, actually either of these outcomes works. Either the mainstream press in the United States collapses as an effective investigative organ holding the government to account and all sources then are forced to only deal with WikiLeaks, or the administration finds that it has to conform to the U.S. First Amendment and other parts of the Constitution and then the United States is a free society that upholds our values.

    “Little did we realize that our greatest struggle would come in 2010, as we tried to bring the First Amendment to the United States.” – Julian Assange 5/25/11

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