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http://www.politico.com/blogs/under-the-radar/2013/08/nyt-journalist-fights-ruling-nixing-reporters-privilege-169843.html

NYT journalist fights ruling nixing reporter's privilege

By JOSH GERSTEIN | 8/2/13

A New York Times journalist whose claim he shouldn't have to testify in a leak prosecution was rejected, 2-1, last month by a federal appeals court panel asked Friday that the full bench of that court rehear the case.

Lawyers for national security reporter James Risen made the request in a petition filed with the U.S. Court of Appeals for the 4th Circuit, which is based in Richmond and covers Virginia, West Virginia, Maryland, North Carolina, and South Carolina.

"The Panel Opinion conflicts with every other court of appeals to have decided these issues.

[Not surprising, imho.]

Thus, investigative reporters in this Circuit are now the only ones without any protection at all in criminal prosecutions, and consequently, prosecutors will have unfettered access to information about their confidential informants," Risen's attorneys declare in their request to have all 15 4th Circuit judges consider the issue.

Risen's testimony was sought by the government in its prosecution of Jeffrey Sterling, a former Central Intelligence Agency officer indicted in 2010 for leaking details of a CIA operation targeting Iran's nuclear program. Risen's 2006 book, "State of War," details what he describes as a botched attempt to delay the program by sending flawed blueprints to Tehran.

After a wait of more than a year,

[What were they doing for a YEAR?]

the 4th Circuit panel issued a decision on July 19 overturning a district court judge's ruling that Risen was protected by a "reporter's privilege" and likely would not have to testify about his source.

The strongly-worded decision eviscerated the notion of a reporter's privilege—at least one created or recognized solely by the federal courts.

However, it also put the Obama Administration in an awkward position. Just days after the Justice Department issued new guidelines seeming to back away from prior intrusions on the work of journalists, prosecutors obtained a ruling that set back the rights of reporters' to resist such inquiries. The case also created the possibility that the Obama Justice Department could wind up arguing against the press in a Supreme Court fight over reporter's privilege.

Risen's lawyers, David Kelley and Joel Kurtzberg, argue that DOJ's policy change adds to the case for the entire 4th Circuit to look at the reporter's privilege issue.

"The DOJ's recent decision to strengthen its already-strict, voluntarily guidelines for subpoenaing members of the media provides further evidence of the near-unanimous consensus that journalists should have a qualified privilege not to reveal their confidential sources and further support a finding of a common law privilege," Kelley and Kurtzberg write in the en banc petition (posted here). "The DOJ has acknowledged that the consensus about reporters' need to protect their sources has led the DOJ to voluntarily apply - internally - the very type of balancing test Mr. Risen urges here."

If the 4th Circuit takes up Risen's suggestion for en banc review, that could give the Justice Department and the White House some breathing room by resulting in further delay in the case.

Risen has made clear he will go to the mat to keep his sources confidential. "I remain as resolved as ever to continue fighting. I will always protect my sources," he told POLITICO last month.

A wide array of news organizationsjoined in an amicus brief filed Friday afternoon (and posted here) endorsing Risen's bid for en banc rehearing of the case.

A Justice Department spokesman did not immediately reply to a request for comment on Risen's petition.

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Amicus brief:

http://images.politico.com/global/2013/08/02/sterlingrisenenbancamicus.html


(snip)

During that period, an overwhelming number of states (in all, 39 plus the
District of Columbia) have enacted a reporters’ privilege by statute and all but one
have recognized and applied it in their courts, including every state within this
Circuit.

At the
federal level, despite its position in this case, the Department of Justice has
recently reacted to the broad public outcry that greeted the revelation that it had
issued subpoenas to third parties seeking information about journalists’ sources by
taking concrete steps to enhance its own commitment to our shared national view
of the “essential role of a free press in fostering government accountability and an
open society.” (Department of Justice Report on Review of News Media Policies,
July 12, 2013.)


As Judge Sack has explained, in a passage that ought to be
dispositive of the inquiry with respect to judicial recognition of a common law
reporters’ privilege under Rule 501, there can be no dispute that, in 2013, such a
privilege “exists. It is palpable; it is ubiquitous; it is widely relied upon; it is an
integral part of the way in which the American public is kept informed and
therefore of the American democratic process.”

CONCLUSION
“[T]he freedom of the press is one of the our Constitution’s most important
and salutary contributions to human history.” Sterling, 2013 WL 3770692, at *33
(Gregory, J., dissenting). Because the decision rendered by the panel majority is
insufficiently protective of that fundamental freedom and contrary to prior rulings,
this Court should grant the petition for rehearing en banc and reconsider this case.