Dodging a bullet on reporter's privilege
by digby
In a way, this is probably a blessing:
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.
This Supreme Court is so partisan that it might be expected to defy the Obama justice department and grant a reporter's privilege one and for all. But it is also so ideological that it's far more likely to deny it. It's a big risk.
And considering that just last week the Department of Justice made this startling admission, Risen can probably rest easy --- at least for a while:
“As long as I am attorney general, no reporter is going to go to jail for doing their job,” Eric Holder, who heads the Justice Department, told news representatives in a private meeting earlier this week.
And that, according to Holder’s deputy, has always been Holder’s position.
But Holder’s Justice Department has threatened for several years to put New York Times reporter James Risen behind bars unless he testifies about one of his confidential sources for a 2006 book on covert CIA operations.
Federal prosecutors first subpoenaed Risen for that information in 2008, and Holder has since approved subsequent subpoenas for Risen to testify about his source, most recently at the upcoming trial of former CIA official Jeffrey Sterling, who, even without Risen’s help, was indicted in 2011 for allegedly being the source. Defying a subpoena backed by a judge amounts to contempt of court, which can put someone in jail for up to 18 months.
Risen’s case has become part of a much larger uproar over how the Justice Department handles journalists and their confidential sources – an uproar peaking last year with news that federal investigators had secretly obtained phone records from The Associated Press for a separate leak investigation and had described Fox News reporter James Rosen as a criminal “co-conspirator” in another leak probe.
The uproar forced the Justice Department to revise its guidelines for dealing with reporters, specifically when and how federal investigators can obtain a reporter’s records.
But a Justice Department official acknowledged that those revisions did not tackle when and how federal investigators can try to compel reporters to testify about their confidential sources, something the comments from Justice Department leadership this week addressed in unprecedented terms.
“So [not jailing a reporter] has been the policy of this attorney general from the start?” ABC News asked Deputy Attorney General Jim Cole at a reporters’ roundtable inside the Justice Department Wednesday.
Cole answered simply: “Yes.”
Good to know the whole thing is just a kabuki designed to scare reporters and give lawyers something to do.
One of these days it would be a good idea to test the constitutionality of the reporter's privilege before the Supreme Court. But this Supreme Court is not one where liberals and civil libertarians should feel confident of getting a good result on anything.
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