They'll be waterboarding journalists soon....

[Peter Lemkin]

Journalist James Risen ordered to testify in CIA leaker trial

Appeals court rules that reporters have no first amendment protection that would safeguard confidentiality of their sources

• Ed Pilkington in New York
  
  
• guardian.co.uk, Friday 19 July 2013 21.51 BST
  

New York Times reporter James Risen has said in previous comments that he will rather go to prison than reveal the identity of his source. Photograph: AP

A federal appeals court has delivered a blow to investigative journalism in America by ruling that reporters have no first amendment protection that would safeguard the confidentiality of their sources in the event of a criminal trial.
In a two-to-one ruling from the fourth circuit appeals court in Richmond, Virginia, two judges ruled that a New York Times reporter, James Risen, must give evidence at the criminal trial of a former CIA agent who is being prosecuted for unauthorised leaking of state secrets.
The ruling, written by chief judge William Traxler, states in stark terms that even when a reporter has promised confidentiality to a source, "there is no first amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify … in criminal proceedings".
The ruling comes at a time of increasing tension between news organisations and the US government in the context of an unparalleled clamp down by the Obama administration on official leakers. Jeffrey Sterling, the former CIA employee in whose trial Risen must now testify or face possible jail time, is the seventh former government employee to face prosecution under the stringent Espionage Act since Obama took office, alongside former NSA contractor Edward Snowden and Bradley Manning, currently on trial for passing documents to WikiLeaks.
David Kelley, a member of Risen's legal team, said he were looking at the options in the light of today's ruling. He added that the Department of Justice had revised its guidelines since the appeal court came to its opinion and he hoped that would influence what the prosecution in the Sterling case did next.
The timing of the appeal court ruling is ironic as it comes just days after the new Justice Department guidelines were published. Those guidelines were drawn up at the request of President Obama following the controversy over surveillance of the phone lines of Associated Press.
They emphasised that the Obama administration wished to strike "the appropriate balance between two vital interests: protecting the American people by pursuing those who violate their oaths through unlawful disclosures of information and safeguarding the essential role of a free press in fostering government accountability in an open society."
Only hours before the appeal court issued its harsh judgment, Risen's lawyers filed a letter to the court urging the judges to take on board the new DoJ guidelines as evidence of the government's desire to recognise a federal common law privilege for reporters.
Senior journalists and media experts reacted with disappointment to the appeal court ruling, which overturned an earlier district court judgement that had granted Risen protection against being forced to testify about his source. The matter relates to Risen's 2006 book, State of War, that included a passage on CIA efforts to foil Iranian nuclear ambitions for which Sterling was accused of having been the source four years later.
Stephen Engelberg, the editor-in-chief of the investigative website ProPublica, said the ruling was "extremely unfortunate given the criminalisation under this government of officials talking to reporters". He said it underlined the need for a federal shield law that would extend protections to journalists in line with similar safeguards that already exist in many states.
Lucy Dalglish, co-chair of the First Amendment Committee of the American Society of News Editors, said the decision would add to the chill that was rapidly taking hold in America as a result of the aggressive pursuit of leakers by the Obama administration. "It has really got bad, and not just in national security reporting. Every official now knows that if they talk to a reporter they are potentially in a world of hurt."
Risen has said in previous comments that he will rather go to prison than reveal the identity of his source. Were that to happen, he would join a small club of reporters jailed for contempt of court for refusing to testify that notably includes Judith Miller, the former New York Times journalist who spent two months in prison in 2005.
Lowell Bergman, professor of investigative reporting at UC Berkeley, said the appeal court ruling "underscores the danger that we now face as a society when prosecutors are told that they can use journalists to gather evidence against potential and active defendants".
The Freedom of the Press Foundation, which is campaigning to introduce greater access to information in the prosecution of Bradley Manning, pointed out that the Fourth Circuit appeals court covered many of the largest government agencies dealing with national security, including the NSA. "This is the worst reporter's privilege decision in recent memory, and if it stands, will have significant consequences for press freedom in the United States," said the foundation's Trevor Timm.
In a dissenting opinion, the third judge on the panel, Roger Gregory, made a robust argument for protecting the privileges of journalists seeking to keep the identity of their sources confidential. "A free and vigorous press is an indispensable part of a system of democratic government," he wrote. "Public debate on American military and intelligence methods is a critical element of public oversight of our government."

[Peter Lemkin]

Paying the Price: A recent census of reporters jailed or fined for refusing to testify

The Reporters Committee tracks subpoena challenges and helps reporters faced with forced to testify or disclose sources and information. This list is a running tally of recent jailings and fines. If you know of any omissions, please write to us at hotline -at- rcfp.org.

Recent jailed reporters:

• 1984, Richard Hargraves, Belleville, Ill. Newspaper reporter jailed over a weekend in connection with libel case. Released when source came forward.
  
• [B]1985, Chris Van Ness, California. Free-lancer subpoenaed in connection with John Belushi murder. Jailed for several hours; revealed source; released.[/B]
  
• [B][B]1986, Brad Stone, Detroit. TV reporter refused to reveal identities of gang members interviewed several weeks prior to cop killing. Jailed for one day; released pending appeal. Grand jury then dismissed.[/B][/B]
  
• [B][B][B]1987, Roxana Kopetman, Los Angeles. Newspaper reporter jailed for six hours for resisting prosecution subpoena seeking eye witness testimony. Appealed; court ruled against her, but criminal case was long over.[/B][/B][/B]
  
• [B][B][B]1990, Brian Karem, San Antonio. TV reporter subpoenaed by defense and prosecution; refused to reveal name of individuals who arranged jailhouse interview. Jailed for 13 days. Released when sources came forward.[/B][/B][/B]
  
• [B][B][B]1990, Libby Averyt, Corpus Christi, Texas. Newspaper reporter subpoenaed for info about jailhouse interview. Jailed over a weekend; released when judge convinced she would never turn over the unpublished information sought.[/B][/B][/B]
  
• [B][B][B]1990, Tim Roche, Stuart, Fla. Newspaper reporter subpoenaed to reveal source for leaked court order supposed to have been sealed. Jailed briefly, released pending appeal. Later sentenced to 30 days for criminal contempt. Served 18 days in 1993, and was released.[/B][/B][/B]
  
• [B][B][B]1991, Sid Gaulden, Schuyler Kropf, Cindi Scoppe, Andrew Shain; Columbia, South Carolina. Jailed for eight hours; released for appeal, which they lost, but trial was over. Prosecutors sought unpublished conversations with state senator on trial for corruption.[/B][/B][/B]
  
• [B][B][B]1991, Felix Sanchez and James Campbell, Houston. Newspaper reporters locked in judges chambers for several hours; had refused to stand in the back of courtroom and identify possible eyewitnesses to crime. Appeal successful through habeas corpus petition.[/B][/B][/B]
  
• [B][B][B]1994, Lisa Abraham, Warren, Ohio. Newspaper reporter jailed from Jan. 19 to February 10, for refusing to testify before a state grand jury about jailhouse interview.[/B][/B][/B]
  
• [B][B][B]1996, Bruce Anderson, Ukiah, Calif. Editor of Anderson Valley Independent found in civil contempt, jailed for total of 13 days for refusing to turn over original letter to the editor received from prisoner. After a week, he tried to turn over the letter, but judge refused to believe it was the original because it was typed. After another week, judge finally accepted that the typewritten letter was the original.[/B][/B][/B]
  
• [B][B][B]1996, David Kidwell, Palm Beach County, Fla. Miami Herald reporter found in criminal contempt, sentenced to 70 days for refusing to testify for prosecution about jailhouse interview. Served 14 days before being released on own recognizance after filing federal habeas corpus petition.[/B][/B][/B]
  
• [B][B][B]2000, Timothy Crews, Red Bluff, Calif. Sacramento Valley Mirror editor and publisher served a five-day sentence for refusing to reveal his confidential sources in a story involving the sale of an allegedly stolen firearm by a state patrol officer.[/B][/B][/B]
  
• [B][B][B]2001, Vanessa Leggett, Houston, Texas. Author researching "true crime" book jailed for 168 days by federal judge for refusing to disclose her research and the identities of her sources to a federal grand jury investigating a murder. Leggett was freed only after the term of the grand jury expired. A subsequent grand jury indicted the key suspect in the murder without any need for her testimony. Leggett may again face a subpoena during his murder trial.[/B][/B][/B]
  
• [B][B][B]2004, Jim Taricani, Providence, R.I. A WJAR television reporter obtained and aired in February 2001 a portion of the videotape showing a Providence city official accepting a bribe from an undercover FBI informant. The tape was sealed evidence in an FBI investigation into corruption by Providence officials, including former Mayor Vincent "Buddy" Cianci Jr. Taricani was subpoenaed, but refused to reveal his source and was found in civil contempt of court. After a failed appeal to the U.S. Court of Appeals in Boston (1st Cir.), NBC, WJAR's network, paid $85,000 in fines. In November, Taricani was found in criminal contempt of court and a month later, was sentence to six months home confinement. He was granted early release after being confined for four months.[/B][/B][/B]
  
• [B][B][B]2005, Judith Miller, Washington, D.C. New York Times reporter jailed for refusing to testify against news sources in the investigation into leaks of a CIA operative's name by White House officials. She spent 85 days in jail, and was released when she agreed to provide limited testimony to the grand jury regarding conversations with vice presidential aide Lewis "Scooter" Libby without revealing her other sources.[/B][/B][/B]
  
• [B][B][B]2006, Josh Wolf, San Francisco, Calif. Freelance video blogger initially jailed for a month when he refused to turn over a video tape that federal officials said contained footage of protesters damaging a police car. Wolf was released on bail on Sept. 1, but an appeals court panel confirmed the contempt order against him and Wolf returned to jail. He was finally released on April 3, 2007.[/B][/B][/B]
  

[B][B]Some lengthy imprisonments:[/B][/B]
[B][B]Myron Farber, NY Times, 1978, served 40 days in jail when he refused to reveal sources in criminal trial.[/B][/B]
[B][B]William Farr, Los Angeles Herald-Examiner, 1972, jailed for 46 days, for refusing to reveal sources in criminal proceedings.[/B][/B]
[B][B]Non-journalist who tried to claim an analogous researcher's privilege: Rik Scarce -- jailed in 1993 in Spokane, WA for refusing to testify before a grand jury about animal rights' activists. Spent about 5 months in jail (October to May) and then released, because trial judge convinced he would never testify.[/B][/B]
[B][/B]

---

[B][B]Fines imposed on journalists found in contempt for protecting sources or unpublished information[/B][/B]

[B][B]This list is not complete; anyone with additional information on fines paid by journalists or media companies should forward it to hotline -at- rcfp.org.[/B][/B]

• [B][B]1975, $500 fine against Mary Jo Tierney, Cocoa Today, refused to testify before grand jury; civil contempt upheld, but no jailing because grand jury had expired.[/B][/B]
  
• [B][B]1978, $1,000 against Myron Farber, $100,000 against NY Times (criminal contempt), plus $5,000 (per day) against Times while Farber in jail. He eventually served 40 days of 6-month sentence for refusing to reveal sources in criminal trial, and the Times paid $185,000 in civil contempt fines. Contempt convictions stood until Farber was pardoned by Gov. Brendan Byrne of New Jersey, and the Times got back the $101,000 in criminal contempt fines.[/B][/B]
  
• [B][B]1979, $5000 fine (per day) against KHON-TV (Honolulu) and $100 a day against Scott Shirai, refused to i.d. sources in libel case; this was requested by plaintiff; unknown whether it was in fact imposed by the court.[/B][/B]
  
• [B][B]1979, $250 (per day) against Bob Hiles of Mansfield, Ohio News Journal, for refusing to disclose source of info about grand jury proceedings; fine suspended after 4 days; contempt reversed by appeals court.[/B][/B]
  
• [B][B]1979, $100 (per day) against David Chandler of Norfolk Ledger-Star for refusing to disclose sources to grand jury; suspended pendig appeal; day before argument in state Supreme Court, trial judge dropped contempt order.[/B][/B]
  
• [B][B]1979, $250 fine against Pamela O'Shaughnessy of Brooklyn's Kings Courier for refusing to identify undercover source during drug trial; stay granted pending appeal; appellate division reversed.[/B][/B]
  
• [B][B]1980, $1.00 (per day) against CBS for refusing to turn over notes and tapes to criminal defendant who had been subject of a 60 Minutes report; upheld by appeals court; let stand by SCOTUS (this is one of the "Cuthbertson" cases).[/B][/B]
  
• [B][B]1981, $100 fine against Mark McKinnon, editor of UT paper, The Daily Texan, for refusing to turn over unpublished photos of demonstration.[/B][/B]
  
• [B][B]1981, $500 (per day) fine against Ellen Marks and the Idaho Statesman, for refusing to reveal hiding place of source involved in child custody dispute; a total of $36,000 in fines paid; in 1983, state supreme court found there is no privilege; unknown whether fines ever remitted.[/B][/B]
  
• [B][B]1982, $500 against Barry Smith of Durango Herald and Dave Tragethon of KIUP-KRSJ radio for refusing to answer questions about sources in criminal trial; stayed pending appeal; appellate court refused to lift criminal contempt and made them pay and serve 2 days in jail, but civil contempt dismissed.[/B][/B]
  
• [B][B]1982, $500 against Nick Lamberto of Des Moines Register, for refusing to turn over notes in civil damage suit.[/B][/B]
  
• [B][B]1982, $100 (per day) against Robin Traywick of Richmond Times-Dispatch for refusing to i.d. confidential sources to grand jury. She accumulated $1,400 in fines. She eventually testified, but never revealed any of her sources.[/B][/B]
  
• [B][B]1983, $500 against James Wright of Daily Idahonian for refusing to reveal confidential source in criminal trial; later judge imposed $500 (per day) fine, stayed pending appeal; in May 1985, state Supreme Court ruled Idaho Constitution gives qualified privilege to reporters.[/B][/B]
  
• [B][B]1985, $1000 against freelancer Christopher Van Ness who refused to releas tape of conversation with Cathy Smith about John Belushi death at preliminary hearing; also sentenced to 10 days in jail; turned over tape after serving a day.[/B][/B]
  
• [B][B]1987, $300 fine against Oregonian editor Bill Hilliard for refusing to turn over unpublished photos of anti-nuclear rally to defendants; court of appeals reversed and voided fine, finding photos unnecessary.[/B][/B]
  
• [B][B]1988, $100 (per day) with $1000 maximum against Roxana Kopetman of LA Times; in 1990, state Supreme Court ruled reporter must testify.[/B][/B]
  
• [B][B]1991, $500 (each) against James Campbell of Houston Chronicle and Felix Sanchez of Houston Post for refusing to i.d. sources who might attend a criminal trial; federal district judge reversed.[/B][/B]
  
• [B][B]1992, $2,000 per day, plus $4,000 gov't's legal fees, against Susan Smallheer and Rutland (VT) Herald. Sought interview with prison escapee. State high court ruled prospective contempt fines and atty fees improper.[/B][/B]
  
• [B][B]1996, $500 ($240 per day for 2 days) against Minnesota Daily, university newspaper, for refusing to turn over photos.[/B][/B]
  
• [B][B]1996, $500, David Kidwell, Miami Herald, criminal contempt with 70 day sentence for failing to testify for prosecution about jailhouse interview.[/B][/B]
  

[B][B]

- See more at: http://www.rcfp.org/jailed-journalists#s...lt2Ip.dpuf

[/B][/B]

[Jan Klimkowski]

The ruling, written by chief judge William Traxler, states in stark terms that even when a reporter has promised confidentiality to a source, "there is no first amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify … in criminal proceedings".

Sometimes the only meaningful response to a lackey tool like Traxler is:

FUCK YOU!

[Magda Hassan]

James Risen's risk of prison means journalism is being criminalised

That a New York Times national security reporter may be jailed for refusing to name a source is a total affront to press freedom

By Lindsey Bever

August 12, 2013 "Information Clearing House - Committing an act of journalism could soon become an imprisonable offence.

New York Times reporter James Risen has been ordered to testify in the criminal trial of former Central Intelligence Agency official Jeffrey Sterling, who has been indicted under the Espionage Act of 1917 for leaking classified information to Risen for publication in his book, State of War. Last month, the US court of appeals for the fourth circuit in Richmond, Virginia, ruled that Risen could not claim a reporter's privilege under the first amendment to win exemption from being compelled to testify.

In effect, the court has ruled that the journalist must reveal his source. That sets a dangerous precedent now applicable in Maryland and Virginia, home to the NSA and CIA the very states in which national security journalism matters most. If a reporter cannot guarantee confidentiality to an important source willing to provide information that may be of vital public interest, the job of journalism itself has been criminalised. If a reporter like Risen refuses to co-operate and name names, he himself may face time behind bars.

Indeed, like a dedicated few before him, Risen has vowed to go to prison rather than break his vow of confidentiality in the courtroom. Although there will almost certainly be an appeal, the court's ruling is a potentially devastating blow to investigative journalism. Given its significance, it is shocking how little publicity the Risen/Sterling case has yet received from major media outlets with a direct interest in its outcome.

The Obama administration's war on whistleblowers coupled with the court's ruling against watchdog reporters highlight the federal government's efforts to curb the flow of information from both ends. No one disputes that at times journalists have a duty of care when entrusted with secret information with possible national security implications, but Risen is critical of how government officials will use this argument cynically to delay or suppress a story. He said recently:

I've been an investigative reporter for a long time, and almost always, the government says that ['you can't publish that because of the national security risk'] when you write a story. And then they can never back it up. They say that about everything. And it's like the boy who cried wolf. It's getting old.

Stephen Engelberg, editor-in-chief of the investigative nonprofit news organisation ProPublica, said the fourth circuit's ruling was "extremely unfortunate given the criminalisation under this government of officials talking to reporters". He stressed the need for a federal version of the "shield law" that already exists in many states and safeguards journalists' right to protect sources.

Even Obama's own chief law officer, Attorney General Eric Holder, recently affirmed that right when he announced new Justice Department guidelines for investigations involving journalists. But Holder himself conceded that his own guidelines would still fall short, and that press freedom needs guarantees from Congress. New York Senator Chuck Schumer and South Carolina Senator Lindsey Graham have introduced a media shield law, but their bill does not provide absolute privilege.

One problem is that it's often hard to mobilize widespread public support for civil liberties issues. In a survey released last month by the First Amendment Center, 80% of those polled agreed that it's important for a democracy to have watchdog reporters, but only 14% named freedom of the press as a key right.

We take too much in our democracy for granted for journalists cannot successfully hold government accountable in a society that does not recognise a reporter's right to exercise discretion with his sources and the information they provide. This administration has an atrocious record for prosecuting whistleblowers. Can it really get away with jailing the reporters who talk to them, too?
http://www.informationclearinghouse.info...e35829.htm