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.

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Emptywheel Twitterverse
emptywheel Why does 9/11 report say we need more fearmongering if counterterrorism performance as good as it say it is? http://t.co/LnVR7IAW9T
4mreplyretweetfavorite
emptywheel 9/11 Report warns of "creeping tide of complacency" v rising threats in ME. Why threat rising if CT performance good? http://t.co/LnVR7IAW9T
7mreplyretweetfavorite
emptywheel @BradMossEsq Justifies? That your client was able to say things he almost certainly wouldn't have before? That's your question?
13mreplyretweetfavorite
emptywheel @BradMossEsq Yes, there is a whistleblowing process. Yes, in this case that was made easier bc Snowden leaked the info first.
23mreplyretweetfavorite
emptywheel @BradMossEsq No, your original, fanciful claim is this info is not declass bc of Snowden. Unless Clapper was lying abt his actions it is.
24mreplyretweetfavorite
emptywheel @BradMossEsq But to invent world in which Clapper didn't declass all that info in response to Snowden is simply fanciful.
27mreplyretweetfavorite
emptywheel @BradMossEsq And again, that's NOT to take away from your client. Now people will finally read what was in public domain bc of Snowden leaks
28mreplyretweetfavorite
emptywheel @BradMossEsq Very basic point: Snowden leaks. Clapper releases info saying he did so to respond. Your client writes op-ed on info.
30mreplyretweetfavorite
emptywheel @BradMossEsq Again, PLEASE stop mischaracterizing what I say so you can pretend things are something other than they are.
31mreplyretweetfavorite
emptywheel @Jj_nyappdefense Did I say that? Nope. But let's start w/McMillan's access to press, which not all inmates have.
33mreplyretweetfavorite
emptywheel @BradMossEsq That Clapper released all the info your client did, saying it was so he could respond to Snowden leaks.
33mreplyretweetfavorite
emptywheel @BradMossEsq Again, are you accusing Clapper of LYING abt his declass? otherwise, your point is false. @Paulmd199 @ashk4n
35mreplyretweetfavorite
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