Federal prosecutors need Times reporter to make their case against alleged leak

June 5

Federal prosecutors have made strong arguments about why they need the testimony of New York Times reporter James Risen in the criminal trial of former CIA officer Jeffrey A. Sterling.

Sterling is accused of leaking the classified information that appeared in Risen’s 2006 book, “State of War,” and prosecutors have subpoenaed Risen to identify the former CIA officer as his source.

When the Supreme Court on Monday turned down Risen’s appeal to hear his case to quash the trial subpoena, most reports dealt primarily with what this meant to press freedom.

I sympathize with Risen’s problem. I’ve had to deal with subpoenas requiring me to identify sources. One was a civil case in which I was found in contempt for not disclosing sources, but the case was settled before I had to pay a fine. The other was a criminal case, where my source identified himself, then cleared me to provide a deposition.

On Slate the other day, Emily Bazelon argued that the Obama administration’s cracking down on leakers would make it harder for reporters to gather sensitive information.

She added, “And usually, the public is better off with more information than less. That includes information the government would like to keep quiet.”

That also should include information the media might like to keep quiet, because it undermines the often one-sided presentation in matters such as the Risen case.

Here is some background from the government’s side about the need for Risen’s testimony.

Sterling was indicted on Dec. 22, 2010, and accused of unauthorized disclosure of national defense information, giving such information to someone not entitled to receive it, and two other technical charges.

He was a case officer from May 1993 through January 2002. From November 1998 through May 2000, he was assigned to a program designed to interfere with Iran’s attempt to develop nuclear weapons, in part directing a former Russian scientist working for the agency.

In August 2000, after being moved from the Iran program, Sterling filed the first of a series of complaints alleging employment-related racial discrimination by the agency, first with the CIA’s Equal Employment Office, which turned down the complaint in May 2001. On Jan. 11, 2002, Sterling filed a civil complaint in federal court in the Southern District of New York, again alleging CIA racial bias.

In March 2002, Risen published an article about Sterling’s discrimination suit in the New York Times, under the headline “Fired by C.I.A., He Says Agency Practiced Bias.”

Beginning in April 2002, Sterling and his attorney had several conversations with the CIA’s Publications Review Board about a memoir Sterling had written that included material about the Iran program.

Sterling agreed to avoid using classified information in the memoir, though in January 2003 he voiced unhappiness with the overall outcome, according to the government’s 2010 indictment.

On March 5, 2003, Sterling met with two staff members of the Senate Select Committee on Intelligence and described the Iran program and the role of the Russian scientist who was to deliver flawed nuclear weapon designs to an Iranian. According to the indictment, some of the information Sterling gave was false.

In March 2003, Sterling allegedly had six phone conversations with Risen. That led to Risen having three calls, between April 3 and April 30, with the CIA public affairs office, seeking comment on an article he was writing on the still classified Iran program Sterling had worked on.

Risen was told that the story would harm national security, and higher authorities were called in. At an April 30, 2003, meeting, top government officials described to Risen and one of his editors the danger the Russian scientist would face were Risen’s article published. In early May, the Times told the CIA the article would not be published, according to the indictment.

Between February and mid-July 2004, Risen and Sterling had more than 20 phone calls, exchanged 10 e-mails and in September 2004 Risen sent a book proposal for an “Untitled CIA Book” to a publisher containing classified information about the Iran program, according to the indictment.

The book came out in January 2006 and the story about the Iran program and its failure got wide publicity. After nearly five years of investigation, a grand jury indicted Sterling. Risen, however, quashed a subpoena and avoided testifying before a grand jury.

Now the government has won in court and is requiring him to testify at trial.

The rest of its case is built on circumstantial evidence, the e-mails and number and timing of phone calls. However, as the 4th Circuit Appeals Court notes, “it appears that none of the records contain classified information, and the contents of the conversations and communications are other-wise largely unknown. This category of proof is an obviously poor substitute for Risen’s direct testimony.”

The government might be permitted to introduce hearsay evidence — secondhand testimony — from a former CIA agent and Sterling’s ex-girlfriend who could talk of hearing Sterling mention a meeting with “Jim.” But that would not meet the prosecution’s high burden of proof.

Sterling’s attorneys say that without Risen’s testimony they will attack the circumstantial evidence, and point to possible third parties as the source of Risen’s information. Those parties could include Senate staffers and other CIA officers.

On Monday, after being turned down by the Supreme Court, Risen vowed to “continue to fight.” Neither he nor his attorney, Joel Kurtzberg, would comment for this report.

That is understandable.

But so are the words of Judge William B. Traxler Jr. in writing for the majority in the 4th Circuit opinion: “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.”

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