WASHINGTON -- A reporter who has been ordered to testify at the trial of a former CIA officer accused of disclosing classified information lost his bid Monday to get the Supreme Court to clarify whether journalists have a right to protect their confidential sources.
The justices did not comment in rejecting an appeal from New York Times reporter James Risen, who detailed a botched CIA effort during the Clinton administration to thwart Iran’s nuclear ambitions. Risen’s reporting is at the center of criminal charges against former CIA officer Jeffrey Sterling. Federal prosecutors want to force Risen to testify about his sources at Sterling’s trial.
Risen argued that he has a right to protect his sources’ identity, either under the Constitution or rules governing criminal trials. The federal appeals court in Richmond, Virginia, rejected Risen’s bid to avoid being forced to testify.
His Supreme Court appeal came amid a debate over where to draw the line between national security and press freedoms. The Obama administration has been more aggressive than its predecessors in pursuing leaks of government secrets, including reviewing journalists’ phone and email records and seeking to compel reporters to testify.
At the same time federal prosecutors have fought Risen in court, Attorney General Eric Holder has suggested that the government would not seek to put Risen in jail should he refuse to testify as ordered.
Joel Kurtzberg, an attorney for Risen, said Monday that prosecutors must now decide whether they will force the issue.
"The ball is now in the government’s court. It can elect to proceed in the Sterling trial without Jim’s testimony if it wants to. If they insist on his testimony and Jim refuses to testify, the court will need to have a hearing to determine if Jim is in contempt and, if so, what the consequence of that will be," Kurtzberg said.
Disclosures of subpoenas for the records and testimony prompted Congress to revive a proposal for a national media shield law, similar to laws in place in most states, which would afford a measure of protection to reporters and news media organizations from being required to reveal the identities of confidential sources. But it would not grant an absolute privilege to journalists.
The last time the Supreme Court weighed in on reporters and confidential sources was in 1972, when the court held 5-4 that that nothing in the First Amendment protects reporters from being called to testify before grand juries.
The appeals court relied on that ruling in Branzburg v. Hayes to side with prosecutors against Risen.
Last year, a three-judge appellate panel ruled 2-1 that Risen could be ordered to testify because 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."
Earlier, a judge had said Risen could be questioned about the accuracy of his journalism but could not be forced to divulge any confidential sources.
Risen has refused to speak with government attorneys about his sources, and he didn’t testify before the federal grand jury that indicted Sterling in 2010 on charges of unauthorized retention and communication of national defense information, unauthorized conveyance of government property, mail fraud and obstruction of justice.
The Associated Press and many other leading news organizations supported Risen’s appeal. The case is Risen v. U.S., 13-1009.