New York Times reporter James Risen is under subpoena to testify in the prosecution of CIA officer Jeffrey Sterling. Sterling is under prosecution for blowing a CIA program intended to undermine Iran’s nuclear program. The program was classified beyond top secret.
To no discernible public good, Risen publicized the program in his book State of War: The Secret History of the CIA and the Bush Administration. The government thinks that Sterling was Risen’s source and has subpoenaed Risen to testify in Sterling’s prosecution; Risen would prefer not to testify. He declares he will subject himself to imprisonment rather than testify.
Paul Mirengoff wrote about Risen’s subpoena and the pending trial of Sterling this week in “James Risen would prefer not to; Eric Holder must decide what he prefers.” I wrote about the issues, most recently, in “The Risen Heist” and this past June in “Eric Holder would prefer not to.”
For a full understanding of what Risen has wrought here I urge interested readers to read Gabriel Schoenfeld’s Weekly Standard articles “Not every leak is fit to print” (2008) and “What gives?” (2010) as well as Gabe’s Power Line post “A Risen in the sun.” This is a most serious matter.
I think that Risen ought to be in the dock along with Sterling, but here the government is simply treating Risen as a citizen to whose testimony it is entitled. Assuming Sterling was the perpetrator, the government seeks Risen’s identification of Sterling as his source for the betrayal of the CIA program. Risen’s claim of privilege has been rejected by the federal court of appeals in which the prosecution is pending; the Supreme Court has declined to take up Risen’s claim of privilege. Risen’s claim of privilege has no basis in law.
Both Paul and I predicted that Eric Holder’s Department of Justice would relent in seeking Risen’s identification of his source in Sterling’s prosecution. Yesterday the Department of Justice leaked its deliberations over an offer to this effect. The Los Angeles Times reports the leak in “New York Times reporter James Risen would be offered deal to avoid jail.” The Times’s Timothy Phelps reports:
The Justice Department is considering offering New York Times reporter James Risen a deal that could enable him to avoid jail time over refusing to testify in a national security investigation and save face for prosecutors under increasing pressure for their handling of 1st Amendment issues, according to a senior Justice Department official.
The department has been given a deadline of Tuesday by U.S. District Court Judge Leonie Brinkema to decide whether to enforce a subpoena requiring Risen to testify in the prosecution of CIA officer Jeffrey Sterling on charges of disclosing national defense secrets on Iran to Risen.
Risen appealed the subpoena all the way to the U.S. Supreme Court, which turned him down in June. Sterling’s trial is scheduled to begin in January.
The senior official, who was not authorized to speak publicly on the case, said Justice Department lawyers have asked Atty. Gen. Eric H. Holder Jr. to approve an arrangement in which Risen does not have to name his source, but will testify about other circumstances surrounding his reporting.
Risen’s lawyer states that no deal has actually been presented to Risen yet. The leak thus seems the predicate to surrender on Risen’s terms, the precise terms to be worked out next week.