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.

[snip]

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.

[snip]

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.

[snip]

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.

Tweet about this on Twitter0Share on Reddit0Share on Facebook0Google+5Email to someone

32 Responses to Fourth Circuit Guts National Security Investigative Journalism Everywhere It Matters

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8
  • 9
  • 10
  • 11
  • 12
  • 13
  • 14
  • 15
  • 16
  • 17
  • 18
  • 19
  • 20
  • 21
  • 22
  • 23
  • 24
  • 25
  • 26
  • 27
  • 28
  • 29
  • 30
  • 31
  • 32
Emptywheel Twitterverse
bmaz Reupping this: Ferguson/Wilson Grand Jury Return Thoughts and Working Materials https://t.co/sL8MoPJyxh
1hreplyretweetfavorite
emptywheel @zamnight If you've got a decent sized bird, you'll use most of the pound. Last year's it barely covered it.
1hreplyretweetfavorite
bmaz @joshgerstein @SecBurwell And some of us are putting it off because we know just how badly we are getting screwed by this shitbag insurance.
1hreplyretweetfavorite
emptywheel @zamnight I see where you're going, but part of the point is to be able to pull off the bacon when the Lions start losing as a snack.
1hreplyretweetfavorite
bmaz @ScottGreenfield I've not met your wife, but have an inclination we both married up. I know I did anyway....
1hreplyretweetfavorite
bmaz @ScottGreenfield You foot faulting tummy rubber!
1hreplyretweetfavorite
bmaz @mirriam71 I have done like five favorites in my entire Twitter history.
1hreplyretweetfavorite
emptywheel @pinetop12 In fact, while I THINK that was last year's turkey, it may have been 2 years ago, when I moved in day before Thanksgiving.
1hreplyretweetfavorite
bmaz @mirriam71 I love you.
1hreplyretweetfavorite
emptywheel @pinetop12 I can assure you it is not that clean this year.
1hreplyretweetfavorite
bmaz RT @mirriam71: @bmaz they want the grand jurors to hear. And then he walks out of the room and tells the jurors “you figure it out."
1hreplyretweetfavorite
July 2013
S M T W T F S
« Jun   Aug »
 123456
78910111213
14151617181920
21222324252627
28293031