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New York Times reporter must testify against his own source in leaks investigation, court rules

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Columbia University Graduate School of Journalism (STOCK)
Columbia University Graduate School of Journalism (STOCK)

In a major blow against freedom of the press, a federal appeals court in Virginia has ruled that New York Times journalist James Risen must testify against his own source as part of a leaks investigation led by the US Department of Justice. The contentious 2-1 decision holds that Risen must break his reporter's confidentiality and take the stand during the criminal trial of a former CIA officer who is being charged for providing him with classified information.

Judges William Byrd Traxler Jr. and Albert Diaz wrote that "Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means," arguing that Risen is the "only witness who can offer this critical testimony." But Judge Roger Gregory, the third member of the panel, objected vehemently, saying that the majority's decision "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.”

Risen is prepared to go to jail rather than violate his source's confidentiality

The decision reflects an extreme "zero tolerance" view taken on by the Obama administration that has caused American journalists to become routinely entangled in criminal cases related to the leaking of classified information. In May, it was revealed that the Justice Department seized the private emails of Fox News journalist James Rosen after labeling him a "co-conspirator" in the low-level leak of a CIA report on North Korean nuclear tests. Earlier that same month, the Associated Press reported that the Justice Department had seized the phone records of more than 100 of its reporters over the course of three months as part of a different leaks investigation.

The resulting outrage has prompted action from Attorney General Eric Holder, who last week announced new guidelines which restrain his department's ability to obtain journalists' phone records during leak investigations. The New York Times says that Risen, a Pulitzer Prize-winning journalist and author who has been contesting the grand jury subpoena since 2011, plans to appeal the case and is prepared to do jail time rather than violate his source's confidentiality. Risen's source, former CIA agent Jeffrey Sterling, is being charged for providing information used in Risen's 2006 book, "State of War," which describes a Clinton era plot to give Iranian scientists faulty blueprints for a nuclear triggering device. Sterling faces charges under the Espionage Act of 1917, which the Obama administration has used to prosecute more leakers than all previous administrations combined.