Damn. Just yesterday I posted a letter from James Risen's attorney laying out the reasons why the new DOJ guidelines on dealing with journalists should make the government drop its pursuit of his client.
Marcy Wheeler reports:
The Fourth Circuit — which covers CIA, JSOC, and NSA’s territory — just ruled that journalists who are witnesses to alleged crimes (or participants, the opinion ominously notes) must testify in the trial.
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.
With this language, the Fourth applies the ruling in Branzburg — which, after all, pertained to the observation of a drug-related crime — to a news-gathering activity, the receipt of classified information for all the states in which it most matters.
The opinion goes on to echo DOJ’s claims (which I recalled just yesterday) that Risen’s testimony is specifically necessary.
This language will enhance the strength of the reservation DOJ made to its News Media Policies, allowing it to require testimony if it is essential to successful prosecution.
The only limit on the government’s authority to compel testimony under this opinion is if the government is harassing the journalist, which (with proof of the way the government collected phone records, which remains secret) might have been proven in this case. There is a strong case to be made that the entire point of this trial is to put James Risen, not Jeffrey Sterling, in jail. But Leonie Brinkema has already ruled against it. I think the subpoena for 20 AP phone lines might rise to that level as well, except that case is being investigated in the DC Circuit, where this ruling doesn’t apply.
This pretty much guts national security journalism in the states in which it matters.
Golly. It was just last week when the press believed DOJ’s News Media Guidelines would protect the press’ work.
If anything it would seem the "reservation" in the shiny new guidelines, along with this ruling, were really designed to make the harassment and jailing of journalists easier. It would seem to be yet another Orwellian maneuver by our surveillance state.
[links in original]. How about that?
You like the Fourth Amendment? Digby's got more.
And that embedded "Just yesterday" link in the quote, goes to a post asking, rhetorically, "Will the administration do the right thing here?" That's like asking whether Pope Francis will prove to be a Seventh Day Adventist.
Do not COUNT on it.
Will not EVER happen.
Mass will always be Sunday.
And Randy Weaver got what he deserved, ya betcha. There alone in the Idaho mountains, a threat to everybody, a menace, a pariah needing to be removed much as a weed from a manicured garden. Sawing off a shotgun when an ATF plant offered money to Weaver to purchase one.
Entrapment, thy name is ATF-Reno. Still. Decades later.
Your government, right or wrong, steps with a heavy tread. And after Ruby Ridge they burned the church in Waco. But only after ATF ginned up some gun-related entrapment bunk there too.
_____________UPDATE_____________
Strib carries a N.Y.Times item on Risen's situation. This link. A brief mid-itme excerpt:
Judge Roger Gregory, the third member of the panel, filed a vigorous dissent, portraying his colleagues’ decision as “sad” and a serious threat to investigative journalism.
“Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial,” he wrote. “The majority 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.”
The Justice Department offered no immediate comment. The ruling raises an awkwardly timed question for Attorney General Eric Holder, who has portrayed himself as trying to rebalance the department’s leak investigations in response to the furor over its aggressive investigative tactics, like subpoenaing Associated Press reporters’ phone records and portraying a Fox News reporter as a criminal conspirator in order to obtain a warrant for his e-mails.
The Bill of Rights was put into the Constitution for sound reasons, ones we should not take lightly. A Justice Department that wipes its feet on the Bill of Rights is, at the least, problematic.