In September of this year, the U.S. Senate began debate on a federal reporter’s privilege. Free Flow of Information Act of 2013, S. 987, 113th Cong. §§ 2-5 (2013). The bipartisan bill to recognize such a privilege was introduced by Sens. Charles Schumer (D- N.Y.) and Lindsey Graham (R-S.C.), and has been long in the making. Ever since Nixon-era enemies lists up to recent times, there have been massive disclosures of classified information, most recently through anti-secrecy groups such as Wikileaks, best-selling “tell all” books by intelligence insiders, and DIY-ers such as Pfc. Bradley Manning and Edward Snowden. However, the tension between governmental interests and freedom of the press has been headed toward the inevitable showdown, which neither side really has the appetite for. The Obama Administration, which has pursued more leak-related prosecutions than all previous presidents combined, wants to keep secrets for national security purposes, which the U.S. Supreme Court has recognized as the most compelling of all governmental interests. But it also does not want to chill the newsgathering activities of the press. Thus, the administration appears to trying to strike a balance to maintain public trust based upon some minimal level of transparency. The press, on the other hand, has an interest in maintaining its role in a free and open society, including as a popular check on government power. That requires it to maintain relationships with confidential sources in order to report newsworthy information that many believe the public has a right to know. Those sources would probably dry up if the protection of confidentiality is at risk. Added to the mix is the source, who, let’s face it, prefers anonymity to avoid the implications of potentially illegal conduct.
These competing interests are what make the espionage case of U.S. v. Jeffrey Sterling stand out amid the everlasting tug-of-war between the press and the government. 2013 WL 3770692 (4th Cir. July 19, 2013). James Risen is a two-time Pulitzer Prize-winning investigative reporter for the New York Times who has extensive contacts in the intelligence community. In January 2006, he published a book about the CIA called “State of War: The Secret History of the CIA and the Bush Administration.” One of the chapters, titled “A Rogue Operation,” focused on a CIA program called Operation Merlin, a scheme in which the CIA tried to trick a Russian scientist in 2000 into passing on bogus plans for a nuclear weapon triggering device to Iran, in order to sabotage Iran’s weapons program. Apparently the operation was botched because the flaws in the blueprints were too obvious to miss.
A couple years after Risen published his book, the Bush Administration initiated a grand jury investigation of Jeffrey Sterling, a CIA agent with top-secret security clearance. Toward the end of his CIA career, Sterling specialized in spy operations concerning Iran’s weapons capabilities. The administration suspected Sterling of leaking information on Operation Merlin to Risen, having records of multiple telephone conversations and emails between them. Apparently none of the records revealed a smoking gun, although one email in which Risen cited a CNN article about Iran’s “advanced” nuclear weapons program included Sterling’s suggestive comment that Risen might “wonder” about this. Risen was indicted in 2010 on multiple violations of the Espionage Act of 1917. As trial approached in 2011, U.S. Attorney Eric Holder, apparently realizing that the case was built on circumstantial evidence, approved the issuance of a trial subpoena to Risen to force him to reveal his source, testimony that would likely win a conviction of Sterling. Risen politely declined to cooperate with the government and the battle was joined.
The district court granted Risen’s motion to quash the subpoena, holding that a reporter has a qualified privilege against testifying when there is evidence that the information was obtained under a confidentiality agreement or where the subpoena is intended to harass or intimidate the reporter. The district court concluded that the government lacked any compelling need for Risen’s testimony and failed to show there were no reasonable alternatives to forcing Risen to testify.
Relying on Branzburg
On July 19, 2013, the U.S. Court of Appeals for the Fourth Circuit reversed, citing as precedent the one opinion issued by the U.S. Supreme Court on the subject, Branzburg v. Hayes, 408 U.S. 665 (1972). The Fourth Circuit held that Branzburg precluded it from finding a First Amendment or federal common law privilege that protects a reporter from being forced to testify in a criminal prosecution about the identity of confidential sources. The Fourth Circuit’s reasoning was based on the view that the government’s reliance on Risen to point the finger at Sterling is key to its case, and unless there’s a showing of government bad faith, harassment or other illegitimate motive, Risen can be compelled to testify regardless of any confidentiality that was promised to his source. Risen has confirmed that if he loses his challenge to the subpoena, he will choose to serve time in prison for contempt. (Risen has no testimonial privilege based on the Fifth Amendment because he was granted immunity from prosecution for his potential exposure to criminal liability.) In the interim, he has asked the Fourth Circuit to reconsider its decision, and has separately implored Holder to abandon the government’s efforts to force him to testify.
Risen, joined by two dozen media companies as politically varied as NPR, Fox News, NBC and Dow Jones, argues that the Fourth Circuit’s decision is the first time a federal appellate court has asserted that there is no constitutional or common law privilege protecting a reporter from disclosing confidential sources in a criminal prosecution. Risen also says the court’s holding contradicts its prior decisions, which recognized that if reporters are forced to disclose sources, the free flow of newsworthy information would be restrained and the public’s understanding of important issues and events would be harmed in a way that is inconsistent with a “healthy republic.” Ashcraft v. Conoco, 218 F.3d 282 (4th Cir. 2000). Risen laid out that the majority of the federal circuits have ruled favorably in some form or another on the issue of whether there is a qualified privilege for journalists in a criminal proceeding. This, according to Risen, vindicates the fifth-vote concurrence by Justice Powell in Branzburg, who wrote, rather cryptically, that the claim to privilege “should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct,” lest the news media morph into an “investigative arm” of the government.
Separately, in a letter to Holder sent about a week after the court’s decision, Risen cited the Department of Justice’s (DOJ) own reassessment of its position on the issue in the DOJ Report on Review of News Media Policies, coincidentally issued one week before the Fourth Circuit’s decision. But this was not-so-coincidentally after the uproar over the DOJ’s secret seizure of phone records of the Associated Press and those of a reporter for Fox News. In the new guidelines, the DOJ confirms that subpoenas seeking evidence from members of the news media must be treated as “extraordinary measures” to be used as a “last resort” after all other reasonable alternative investigative steps have been taken. Significantly, the guidelines urge Congress to pass a federal shield law allowing reporters to assert a qualified privilege in the courts. While no one expects the DOJ to abandon the legal arguments it has and continues make in Sterling, any effort by the DOJ to avoid a scenario where its actions have forced a reporter to elect jail over breaching a confidential relationship would surely be hailed by the press as the only right thing to do.
Notwithstanding a spirited defense of the media by the dissent in Sterling hailing a “free and vigorous press” as an “indispensable part of a system of democratic government,” it is unlikely the Fourth Circuit will reconsider its decision in Sterling. That is because it adhered to Branzburg in the strict sense, and none of the authority has held that a reporter who witnesses a crime and promises not to identify the perpetrator (the confidential source) has a privilege not to testify in a criminal proceeding. Federal cases that have acknowledged the reporter’s privilege have been civil actions, not criminal proceedings where the journalist is the witness to the crime, as is the case in Sterling. Additionally, there is an undisputedly compelling public interest in effective criminal investigation and prosecution. The Fourth Circuit went even further, however, and found that even if the civil standard for a reporter’s privilege applied, Risen wouldn’t meet the test for the privilege because there is no alternative means to obtain the evidence against Sterling.
Senate Bill 987
With Sterling as a dramatic backdrop, the confluence of major news events such as mass disclosures, the public’s demand (whether real or perceived) for constant, new and sensational information and the current administration’s struggle in the balance of its efforts to plug national security leaks while touting governmental transparency is coming to a head. Thirty-nine states have reporter’s shield laws, and those that don’t recognize a common law privilege except for Wyoming, which has not weighed in on the subject.
In declining Risen’s request to create a federal privilege, the Fourth Circuit deferred to the Supreme Court or Congress, the latter which can most effectively weigh the policy arguments for and against the privilege. Senate Bill 987 may do just that, although it has its share of critics. It creates a level of protection for journalists that varies depending on the nature of the case. The protection is strongest for civil cases, but is weakened somewhat in criminal matters by imposing a “clear and convincing” evidentiary burden on the media to show that the public’s interest in the free flow of information outweighs the needs of law enforcement, and nearly falls away completely in matters involving terrorism or other harm to national security.
While the Act probably will not be the panacea for long-term peace between the federal government and the media, it reflects at the very least, the government’s recognition of the competing interests involved and the need for a federal framework. As for Risen, it remains to be seen whether the government will force his hand.