The Obama administration has less than one week to decide whether it intends to force New York Times reporter James Risen to testify at the trial of a CIA whistleblower, after a federal judge ordered on Tuesday that the U.S. "commit to a position" by 10 a.m. on December 16.
"Since June 2, 2014, the United States has had over six months to decide whether it will subpoena James Risen to testify at this trial, which is scheduled to begin Monday, January 12, 2015," the order reads (pdf). "Because Mr. Risen's presence or absence at the trial will have a significant impact on how the parties present their case, a decision about Mr. Risen must be made sufficiently before trial to enable the parties to prepare adequately."
"Just as they are trying to fight to keep secret their own investigation into CIA torture, they have shown no signs that they plan on stopping their pursuit of a reporter who's been exposing CIA wrongdoing for over a decade."
—Trevor Timm, Freedom of the Press Foundation
The Times said U.S. District Court Judge Leonie Brinkema's order, issued "with seeming impatience," brings to a head "the most serious confrontation between the government and the news media in many years."
The conflict has been ongoing since 2008, when Risen was first subpoenaed by the Bush administration and ordered by the Department of Justice to testify in the prosecution of former CIA employee Jeffrey Sterling, who is accused of leaking information about a failed Clinton-era CIA mission to sabotage Iran’sprogram. Risen wrote about the failed operation in his 2006 book State of War.
The 2008 order expired as the reporter fought it through the courts, but it was renewed under President Obama in 2010. In 2011, Brinkema ruled that that Risen did not need to identify his source, but a federal appeals court overturned her decision. In June of this year, the U.S. Supreme Court refused to intervene on Risen's behalf, despite his claim that his First Amendment rights were violated.
Risen has vowed not to identify his confidential sources, even if it means going to jail for contempt of court.
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[Attorney General Eric] Holder has said no journalist will go to jail on his watch, while President Barack Obama has gone even further, saying no reporter should be "at legal risk" for his or her work.
Nevertheless, federal prosecutors disclosed at a hearing a couple of months ago that they had again initiated the Justice Department's internal process for demanding Risen's testimony.
Throughout the ordeal, journalists and free press advocates have stood by Risen, claiming that forcing the reporter to testify—or punishing him for refusing to appear in court—would set a dangerous precedent for the interpretation of press freedom under the First Amendment.
But public relations considerations may ultimately play more of a role than the administration's view of journalism ethics.
As Trevor Timm writes for the Freedom of the Press Foundation blog: "On the heels of the CIA torture report, it's hard to imagine the the Justice Department will want to bring more attention to another spectacular failure of the CIA. But just as they are trying to fight to keep secret their own investigation into CIA torture, they have shown no signs that they plan on stopping their pursuit of a reporter who's been exposing CIA wrongdoing for over a decade. Risen has continued to report on the CIA torture regime this week, even while facing the Justice Department's deadline."
Still, some damage has already been done, Timm says. "Sadly, no matter what happens, the Justice Department has already done lasting damage to press freedom for eviscerating reporter's privilege for all future cases in the Fourth Circuit," he concludes. "We again call on them to do the right thing and drop their plans to subpoena Risen for doing his job."