Court Orders Reporter to Testify in Case of Leaked C.I.A. Data

[Kennedy 0]

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Court Tells Reporter to Testify in Case of Leaked C.I.A. Data

WASHINGTON — In a major ruling on press freedoms, a divided federal appeals court on Friday ruled that James Risen, an author and a reporter for The New York Times, must testify in the criminal trial of a former Central Intelligence Agency official charged with providing him with classified information.

In a 118-page set of opinions, two members of a three-judge panel for the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled that the First Amendment does not protect reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking to them. A district court judge who had ruled in Mr. Risen’s case had said that it did.

“Clearly, Risen’s direct, firsthand 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,” wrote Chief Judge William Byrd Traxler Jr., who was joined by Judge Albert Diaz in Friday’s ruling.

Mr. Risen has vowed to go to prison rather than testify about his sources and to carry any appeal as far as the Supreme Court. But some legal specialists said an appeal to the full appeals court was a likely first step. Mr. Risen referred a request to comment to his lawyer, Joel Kurtzberg, who wrote in an e-mail: “We are disappointed by and disagree with the court’s decision. We are currently evaluating our next steps.”

Judge Roger Gregory, the third member of the panel, filed a vigorous dissent, portraying his colleagues’ decision as “sad” and a serious threat to investigative journalism.

“Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial,” he wrote. “The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society.”

Friday’s ruling establishes a precedent that applies only to the Fourth Circuit, but that circuit includes Maryland and Virginia, where most national security agencies like the Pentagon and the Central Intelligence Agency are. As a result, if it stands, it could have a significant impact on investigative journalism about national security matters.

It has long been unclear whether the Constitution protects reporters from being forced to testify against their sources in criminal trials. The principal Supreme Court precedent in that area, which is more than 40 years old, concerns grand jury investigations, not trials, and many legal scholars consider its reasoning to be ambiguous.

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(some of the best stuff comes later in the article; cut for copyright)

For the record, I am not ok with this. What's next, ordering spouses to testify against each other? priests to testify about confessions? Hey, maybe we should just do away with hearsay exclusion! Yippee for government power uber alles!

witty subliminal message
Guard your honor, let your reputation fall where it will, and outlast the bastards.
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[kallend 2,143]

Where in the Constitution are reporters given privileges that the rest of us don't get?

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The only sure way to survive a canopy collision is not to have one.

[Southern_Man 0]

This seems consistent with other rulings I've seen on reporters being forced to testify. A number of reporters have gone to jail rather than reveal their sources. I support them in doing so.

"What if there were no hypothetical questions?"

[Andy9o8 2]

kallend

Where in the Constitution are reporters given privileges that the rest of us don't get?

They're not. It's The People, the citizenry, who are given the freedom of the press. But rights and privileges are mere illusions if The People are deprived of the means - the tools - to exercise those rights. Reporters and jorunalists are the means - the tools - through which The People exercise their constitutional right to freedom of the press.

In order to do their jobs, reporters must be able to gather information; and in order to do that, they must be able to obtain information from confidential sources. They must be able to protect the confidentiality of those sources; for without that confidentiality, the sources would dry up, the journalists would get far less objective information, thereby depriving The People of that information. And without that information, the citizenry is deprived of one of the most crucial tools it needs in order to exercise Government By The People.

Bear in mind that 50% of the 4 federal court judges (who are no intellectual slouches) who've already dealt with this case have sided in favor of the reporter, basically on the grounds I've just stated.

[BIGUN 1,470]

kallend

Where in the Constitution are reporters given privileges that the rest of us don't get?

Not so much the Constitution as much as "Shield Laws" which vary from state to state and not all states' have them.

Nobody has time to listen; because they're desperately chasing the need of being heard.

[Andy9o8 2]

BIGUN

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Where in the Constitution are reporters given privileges that the rest of us don't get?

Not so much the Constitution as much as "Shield Laws" which vary from state to state and not all states' have them.

One view of shield laws is that they add to the privileges granted by the US and/or state constitutions. Another view is that those constitutional privileges already exist, but are worded very broadly, so the shield laws are designed to clarify the existing privileges by adding more specific language, in order to remove potential infringers' ability to exploit the vageness or ambiguity. I, as well as the 2 federal judges who sided with the reporter in this case, subscribe to the latter view.

[kallend 2,143]

Andy9o8

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Where in the Constitution are reporters given privileges that the rest of us don't get?

They're not. It's The People, the citizenry, who are given the freedom of the press. But rights and privileges are mere illusions if The People are deprived of the means - the tools - to exercise those rights. Reporters and jorunalists are the means - the tools - through which The People exercise their constitutional right to freedom of the press.

In order to do their jobs, reporters must be able to gather information; and in order to do that, they must be able to obtain information from confidential sources. They must be able to protect the confidentiality of those sources; for without that confidentiality, the sources would dry up, the journalists would get far less objective information, thereby depriving The People of that information. And without that information, the citizenry is deprived of one of the most crucial tools it needs in order to exercise Government By The People.

Bear in mind that 50% of the 4 federal court judges (who are no intellectual slouches) who've already dealt with this case have sided in favor of the reporter, basically on the grounds I've just stated.

And the other 50%?

If you or I can be jailed for refusing to testify, why should a reporter be given a free pass? How is that "equal protection"?

...

The only sure way to survive a canopy collision is not to have one.

[champu 1]

Andy9o8

In order to do their jobs, reporters must be able to gather information; and in order to do that, they must be able to obtain information from confidential sources. They must be able to protect the confidentiality of those sources; for without that confidentiality, the sources would dry up, the journalists would get far less objective information, thereby depriving The People of that information. And without that information, the citizenry is deprived of one of the most crucial tools it needs in order to exercise Government By The People.

To borrow a construct from Sir Arthur C. Clarke... Either people, press, corporate, or otherwise, can be compelled to testify in a criminal proceeding absent a showing of bad faith by the government or they can not. Both are equally terrifying.

I understand the importance of privilege (doctor-patient, attorney-client, reporter-source, etc.) and I understand the unease surrounding potential misuse of E.O. 13526 to hide things it wasn't meant to protect. I also refuse to accept press organizations or individual members thereof as being comprehensively altruistic, which to me is the assertion made by ignoring the "absent a showing of bad faith" clause above.

[Andy9o8 2]

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And the other 50%?

Well, they're wrong, John. Gee, that was easy.

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If you or I can be jailed for refusing to testify, why should a reporter be given a free pass? How is that "equal protection"?

Again, the reporter is not given a free pass; rather, the tool through which Freedom of the Press is exercised by The People (the reporter, or his publication) is immunized from being rendered effectively impotent. Op. cit.

A further point is to observe that are several other relationships that US and/or various US states' laws immunize from non-voluntary sworn testimony, at least under certain circumstances, for example: attorney-client, clinician-counselor, clergy-penitent, spouse-spouse. I'd put reporter-confidential source in that general category, too.

[kallend 2,143]

Andy9o8

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And the other 50%?

Well, they're wrong, John. Gee, that was easy.

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If you or I can be jailed for refusing to testify, why should a reporter be given a free pass? How is that "equal protection"?

Again, the reporter is not given a free pass; rather, the tool through which Freedom of the Press is exercised by The People (the reporter, or his publication) is immunized from being rendered effectively impotent.

A further point is to observe that are several other relationships that US and/or various US states' laws immunize from non-voluntary sworn testimony, at least under certain circumstances, for example: attorney-client, clinician-counselor, clergy-penitent, spouse-spouse. I'd put reporter-confidential source in that general category, too.

The reporter isn't "the press", he or she is an individual who can be jailed. "The Press" can't be jailed.

As I understand it there are statutory protections for clinicians, clergy... (not that I agree with those either).

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The only sure way to survive a canopy collision is not to have one.

[Andy9o8 2]

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The reporter isn't "the press", he or she is an individual who can be jailed. "The Press" can't be jailed.

I'm comfortable that I've already adequately addressed this. You're just left to decide if you're going to be part of the right 50%.

[kallend 2,143]

I'll toss a coin.

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The only sure way to survive a canopy collision is not to have one.