Federal prosecutors issued a subpoena for a New York Times reporter demanding his testimony in the prosecution of a former CIA operations officer charged with illegally leaking classified information.
In a court filing late Monday, prosecutors in the Eastern District of Virginia said the reporter, James Risen, can provide crucial testimony implicating the defendant, ex-CIA employee Jeffrey Sterling, of O'Fallon, Mo.
But Risen has steadfastly refused to cooperate in the Sterling prosecution. A judge previously quashed a subpoena issued to Risen at an earlier stage in the case. And Risen's lawyer, Joel Kurtzberg, said Risen will again seek to quash the subpoena. He declined further comment.
Prosecutors say Risen's testimony would be relevant to a jury, and that reporters enjoy no special privilege under federal law to avoid testifying.
"Mr. Risen is an eyewitness to those crimes. Mr. Risen's testimony, like that of any other citizen in his situation, should therefore be admitted to permit the jury to carry out its truth-seeking function," prosecutors from the Department of Justice's Criminal Division and the Eastern District of Virginia wrote in a court filing seeking to compel Risen's testimony at trial.
Prosecutors allege Sterling was a source for Risen, a Pulitzer Prize-winning reporter, in his 2006 book "State of War" about CIA operations in Iran.
A spokesman for U.S. Attorney Neil MacBride in the Eastern District of Virginia referred calls to the Justice Department, where DOJ procedures require the attorney general himself to sign off on subpoenaing a journalist.
Justice Department spokeswoman Laura Sweeney said in a statement that the department makes "every reasonable effort to attempt to obtain information from alternative sources before even considering a subpoena to a member of the press, and only seeks information essential to directly establishing innocence or guilt."
Sterling's lawyer, Edward MacMahon, expressed frustration Tuesday that the prosecutors' motion delved into topics that previously had been under seal.
"Everything in that motion has previously been considered classified," MacMahon said. "Ultimately this is an issue between Risen and the U.S. government."
The government's motion is the first time in the case that Risen was mentioned by name. The indictment referred to him only as "Author A." The judge in the case, Leonie Brinkema, has prodded the government to lift much of the shroud of secrecy in the case so it can be efficiently prosecuted in open court.
A New York Times spokeswoman did not return a call seeking comment.
Sterling, who is black, has a long, contentious history with the CIA. He filed a racial discrimination complaint with the agency's Equal Opportunity office in 2000 and followed that up with several federal lawsuits.
One of the prosecutors in the Sterling case, William Welch, is prosecuting a similar case in Maryland against former National Security Agency executive Thomas Drake, accused of mishandling classified evidence in a case that also involves alleged leaks to a newspaper reporter. In the Drake case, though, Welch is seeking to bar any testimony about the newspaper articles that may have flowed from Drake's leaks, arguing the information is irrelevant.
"The only purpose for the admission of these newspaper articles is to put NSA on trial, and the published newspaper articles will only confuse the jury and distract them from the true issues at hand," Welch wrote in court papers in the Drake case. A judge last month rejected Welch's effort to bar the articles from trial.
While many states have "shield laws" that protect journalists from testifying about confidential sources, no such federal law exists. And prosecutors argue that the First Amendment protections guaranteeing freedom of the press are not so broad that they exempt reporters from testifying when they are eyewitnesses to a crime.
"When Risen's anticipated testimony is viewed fairly, there can be no genuine dispute about its relevance to the trial," the prosecutors wrote in the Sterling case. "The question here, therefore, is ... whether there exists a reporter's privilege _ either under the First Amendment or common law _ that exempts this eyewitness from being called, like any other citizen, to provide relevant facts under oath to the jury. ... (T)he answer is no."