by Eric London
The US Court of Appeals for the Fourth Circuit ruled Friday that New York Times reporter James Risen can be forced to testify against former CIA officer and alleged leaker Jeffrey Sterling in a case brought against Sterling by the Obama administration.
In a blow to the First Amendment’s protection of freedom of the press, two of the three presiding appellate judges—both Democratic appointees—reversed a lower court ruling and agreed that the government can jail journalists who refuse to reveal their sources.
The ruling reinforces the US government’s assault on democratic rights. It is part of a wider campaign to intimidate or imprison anyone—journalists included—who attempts to make public information about the secret and illegal actions of the US government.
The Obama administration appealed a federal court ruling in favor of Risen to the Fourth Circuit appeals court, which is based in Virginia, underscoring the ruthlessness of its drive to silence all would-be leakers and whistle-blowers. Friday’s ruling comes in the midst of Washington’s international campaign to capture former National Security Agency contractor Edward Snowden, who has exposed details of the US government’s illegal spying operations against the entire US population and much of the rest of the world, and try him for espionage.
It also coincides with the final stages of the frame-up court martial of Private Bradley Manning, who is charged with espionage and “aiding and abetting the enemy” because he leaked, via WikiLeaks, material exposing US war crimes in Iraq and Afghanistan. Julian Assange, the founder of WikiLeaks, has been holed up in the Ecuadorian embassy in London for more than a year in an attempt to avoid extradition to face prosecution under espionage laws in the US.
Chief Judge William Traxler Jr. wrote in the majority opinion: “There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”
The opinion further stated: “The reporter must appear and give testimony just as every other citizen must. We are not at liberty to conclude otherwise.”
The federal district court ruling quashing the subpoena of Risen, which the Obama administration appealed, stated: “A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook.”
Now that the appeals court has granted such a free pass, the administration has declared its approval. “We agree with the decision,” said Justice Department spokesman Peter Carr. “We are examining the next steps in the prosecution of this case.”
The Obama White House has carried out an unprecedented campaign against alleged leakers and whistle-blowers, prosecuting seven people for violating the Espionage Act of 1917–more than double the number of individuals prosecuted by all previous administrations combined.
Sterling—one of the seven—is under criminal investigation for allegedly providing Risen with information about CIA spying operations against Iran, which Risen subsequently published in his book, State of War: The Secret History of the CIA and the Bush Administration .