New York, June 2, 2014–The Committee to Protect Journalists calls on the United States Department of Justice to withdraw a subpoena seeking to force journalist James Risen to give testimony that would reveal a confidential source. The Supreme Court said today it would not consider Risen’s appeal of a lower court ruling that he must testify, meaning the journalist has exhausted his legal avenues to challenge the subpoena, according to news reports.
The case stems from Risen’s 2006 book State of War, in which the journalist described a botched, top-secret Central Intelligence Agency (CIA) operation to sabotage Iran’s alleged nuclear program. The federal government has sought to compel Risen to reveal his source for the book multiple times in conjunction with its criminal case against former CIA officer Jeffrey Sterling, who is accused of disclosing the classified information and has been charged under the Espionage Act. Risen, invoking his First Amendment rights, has been fighting subpoenas of his testimony since 2008. In 2011, Judge Leonie Brinkema ruled in Federal District Court that, while Risen must testify to the accuracy of his reporting, he could not be compelled by the government to reveal his source. The government appealed the decision and in 2013 the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., reversed the decision, ruling that the First Amendment did not protect Risen from being forced to testify against his source.
Risen has said he will not comply with the subpoena, according to The New York Times. The press freedom group Reporters Committee for the Freedom of the Press (RCFP) said that because of the earlier favorable decision, Risen was never held in contempt of court. If a hearing is held and Risen is found to be in contempt, he could be sentenced to jail and/or receive a hefty fine, according to RCFP.
Risen’s attorney, Joel Kurtzberg, told CPJ that the “ball is now in the government’s court. They could elect to proceed without Risen’s testimony. We would hope that government would not seek to have Jim [Risen] held in contempt for doing nothing other than reporting the news and keeping his promise to his source.”
In a meeting with journalists last week to discuss revised Justice Department guidelines on issuing subpoenas to the press, Attorney General Eric Holder said, “As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted,” according to news reports. The revisions to the guidelines were made after it was revealed that the Justice Department had secretly subpoenaed the records of Associated Press and Fox News journalists in separate leak investigations.
“Attorney General Holder has publicly stated that the Department of Justice will protect a journalist’s ability to engage in newsgathering and that no journalist will go to jail during his tenure,” said Carlos Lauría, CPJ’s senior program coordinator for the Americas. “He should now uphold that commitment to press freedom by instructing the Department of Justice to drop the subpoena against Risen.”
The Obama administration has pursued eight prosecutions of leakers under the Espionage Act, more than twice the total number of such prosecutions since the law was enacted. A CPJ special report published in October concluded that the Obama administration’s aggressive prosecution of leakers of classified information, broad surveillance programs, and moves to stem the routine disclosure of information to the press show that the president had fallen far short of his campaign promise to head the most open government in U.S. history. Several journalists interviewed for the report told CPJ that leak investigations and surveillance revelations had made government sources fearful to talk about sensitive information.