confidential sources

New York Times' James Risen won't be called to testify about his confidential sources after all, his colleague Matt Apuzzo reports. As Jeffrey Sterling goes on trial for allegedly leaking classified information about a CIA operation in Iran, federal prosecutors have dropped their efforts to have Risen testify in the trial on the theory that Sterling was Risen's source. However,  Joel Kurtzberg, a lawyer with Cahill Gordon & Reindel, told Apuzzo, "while Mr. Risen ultimately may not have to testify, the Justice Department used the case to create court precedent that could be used to force journalists to testify in the future."

The New York Times' James Risen reluctantly took the stand in a preview of what testimony he would give if compelled by the Justice Department to give testimony about his confidential sources for classified information in a book chapter about the Iranian nuclear program, his colleague Matt Apuzzo reports. Risen refused to say anything to help prosecutors in their case against Jeffrey Sterling, a former CIA officer who allegedly provided the information to Risen. Edward B. MacMahon, Sterling's lawyer, said during the hearing, "that without more information from Mr. Risen, the government had no case. He said prosecutors could not even prove that the leak had occurred in Virginia," where the case is being prosecuted.

Attorney General Eric Holder has decided against forcing New York Times reporter James Risen to reveal the identity of his confidential source, MSNBC's Pete Williams reports. James Risen said he would go to jail before naming the source who revealed an unsuccessful effort by the CIA to sabotage Iran's nuclear weapons program. The government sought to compel Risen's testimony in the trial of a former CIA official accused of leaking top-secret information.

U.S. District Judge Leonie M. Brinkema has ordered the Obama administration to decide by Tuesday whether it will make national security reporter James Risen testify at the trial of a government whistleblower and force the reporter to discuss his confidential sources, the New York Times' Jonathan Mahler (and Risen's colleague) reports. Prosecutors say the defendant Jeffrey Sterling provided  Risen "with information about a botched C.I.A. attempt to sabotage Iran’s nuclear weapons program, which Mr. Risen wrote about in his 2006 book, 'State of War.'"

The U.S. Supreme Court rejected the appeal of New York Times' reporter James Risen over a lower court ruling that he must identify his confidential source for a national security story, Risen's colleague Adam Liptak reports. Risen could face jail if he refuses to comply with the court order. While the Obama administration said in its brief to the U.S. Supreme Court that there is no evidentiary privilege for reporters not to identify confidential sources who have broken the law, Attorney General Eric H. Holder Jr. hinted that federal prosecutors may not ask for Risen to be jailed for contempt if he refuses to testify, Liptak further reports.

The petition of certiorari made by New York Times reporter James Risen, who the Fourth Circuit has ruled must identify a confidential source in the case of a former CIA agent suspected of being a leaker, will be considered by the U.S. Supreme Court at a May 29 conference, SCOTUSblog reports.

Lee Levine, a leading First Amendment lawyer with Levine Sullivan Koch & Schulz, has said he does not think that the U.S. Supreme Court would take the case. If the U.S. Supreme Court takes the case, there could be five votes in favor of recognizing a qualified common law privilege for reporters’ confidential sources, Levine said. Justice Anthony Kennedy would be the key vote, he said.

After Politico reported that Washington Post reporter Barton Gellman says he's been told his telephone records were obtained by a national security letter, Julian Sanchez posted on Just Security that there at least two ways in which a national security letter would appear to strain the limits of the authority from the only NSL statute allowing for access to telecommunications records.

"First, §2709 may only be used in connection with an 'authorized investigation to protect against international terrorism or clandestine intelligence activities,'" Sanchez writes. "Assuming Bart is not suspected of plotting to blow up any airplanes, it seems probable that we’re dealing here with an investigation of leaks of classified information to press. Yet such leaks—even when they clearly involve a violation of the law—do not obviously satisfy the traditional definition of 'clandestine intelligence activities.'"

Second, Sanchez writes, "a clause added to the NSL provisions by the USA Patriot Act—to compensate for the elimination of the requirement that NSLs target suspected agents of a foreign power—provides that they may be used for an authorized investigation 'provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States.' The sole basis for seeking Gellman’s records would, of course, be his First Amendment–protected newsgathering and reporting activities."

Defense lawyers for the accused Aurora, Colorado, movie shooter are going to seek access to a reporter's confidential sources all the way to the U.S. Supreme Court, Reuters reports. The New York Court of Appeals ruled that state's shield law protects Jana Winter from having to reveal her sources in the Colorado criminal case.

(Hat tip to How Appealing, where I first saw this news.)

New York Times reporter James Risen, who federal prosecutors are seeking to have identify his confidential sources in a criminal case against an alleged CIA leaker, has asked the U.S. Supreme Court to consider whether he is entitled to reporters privilege, Politico reports. At issue Risen's counsel argued in the petition is if journalists have a a qualified First Amendment privilege regarding confidential sources in criminal trials and if a common law privilege should be recognized for journalists under Federal Rule of Evidence 501.

The New York Court of Appeals ruled today that Fox News reporter Jana Winter is protected by that state's media shield law from identifying her anonymous law enforcement sources in reponse to a Colorado defendant's subpoena, Politico reports. New York's highest court was sharply divided in a 4-3 decision.

Winter had an exclusive about a notebook belonging to James Holmes, who is charged with the mass killing at the movie theater in Aurora, Colorado.

The majority said a ruling against Winter would violate New York's strong public policy favoring the protection of journalists, which made New York "'the media capital of the country, if not the world,"' Politico reports. The dissent said Colorado laws should apply.