Earlier this week, the US district judge Leonie Brinkema ordered prosecutors to announce at a 16 December hearing whether they plan to call Risen as a witness.
In her one-page order, Brinkema also asked prosecutors to reveal “any conditions or limitations” they have worked out with Risen’s attorneys. She said the Justice Department has had more than six months to decide whether it would subpoena Risen to testify at the trial, which is scheduled to start on 12 January.
The Justice Department will not try to compel New York Times reporter James Risen to testify about his source at an upcoming trial of a former CIA officer accused of leaking classified information, according to a source familiar with the investigation who spoke on condition of anonymity.
The person briefed on the matter, who spoke on condition of anonymity because the decision had not yet been formally announced, said the Justice Department may still subpoena Risen to testify on other topics but would not compel him to divulge the identify of his source.
Or as TechDirt put it,
However, there was a bit of irony in all of this: the DOJ leaked this information to the press. Risen’s lawyer told reporter Jana Winter that they hadn’t received any official word when the stories started appearing in the press, and there hadn’t been any official government filing. The NY Times reports the same thing. Instead, it was just reported in the press as “according to a person familiar with the decision.”
In other words, it “leaked” from the DOJ.
Or, more specifically, it leaked from the DOJ that it wouldn’t seek to put a reporter in jail for refusing to say who leaked other information to him, as it still looks to put that original leaker in jail.
as Kevin Gosztola explains
Despite comments from anonymous officials, the United States government has issued no formal offer to New York Times reporter James Risen to protect him from having to reveal any information about his confidential sources if he were to be subpoenaed and forced to testify in the trial of former CIA officer Jeffrey Sterling, according to his attorney.
Sterling is alleged to have given information to Risen on a classified program that the government claims was “intended to impede Iran’s efforts to acquire or develop nuclear weapons,” which Risen later published in his book, State of War. A trial is currently scheduled for January.
Risen’s attorney reacted to anonymous officials who leaked on December 12 that Attorney General Eric Holder would no longer force Risen to testify about the identity of his confidential sources:
From my lawyer, Joel Kurtzberg: “We have not yet heard from the government. They have made us no offers. When they do, we will respond.”
— James Risen (@JamesRisen) December 13, 2014
NBC News Justice Correspondent Pete Williams obtained comment from a “Justice Department official,” who stated if the government subpoenaed Risen to force him to provide testimony, it would not be for testimony “about the identity of his source.” The government would have him “confirm that he had an agreement with a confidential source, and that he did write the book.”
The official added the government would “no longer seek what he’s most concerned about revealing.”
Sterling faces a trial on ten felony counts, seven of which are under the Espionage Act. Much of the evidence in his case suggests he is another whistleblower who has fallen victim to President Barack Obama’s war on whistleblowers (even though his prosecution began before Obama was elected).
Marcy Wheeler and Norman Solomon reported for The Nation:
In early March 2003, Sterling met with two Senate Intelligence Committee staffers to report that Operation Merlin—the CIA’s ill-conceived and bungled effort in 2000 to use a former Russian scientist to pass flawed nuclear-weapons blueprints to Iran—may have helped Iran’s nuclear ambitions. The government concedes that Sterling went through proper channels when he “disclosed classified information” to committee staff. (In court documents, the prosecution has complained that Sterling was unfairly critical of that operation when he spoke to committee staffers.)
Sterling’s lawyers know that — as ExposeFacts noted earlier this month — journalists of Risen’s caliber do not write entire book chapters based on a single source. Sterling’s lawyers would have every incentive to get Risen to testify about the range of sources he used for his book.Setting Sterling’s lawyers up to ask Risen how many sources he spoke to for the chapter of State of War might be particularly useful for the government, given that Sterling will be able to introduce some information (the scope of which is not yet public, pending the declassification of a Brinkema order on the subject) about how witnesses against him, including his supervisor at the time, have mishandled classified information. That is, the government may well be in the position to ask Risen enough to allow Sterling to ask the journalist about his sources. This would let the government expose Risen’s reporting, but do so at the hands of the defendant and the judge who would then be protecting Sterling’s right to a fair trial.
Read Glenn Greenwald’s interview with James Risen, or watch James Risen on Democracy Now! or listen to interview on Fresh Air. Julianna Forlano also discussed Sterling case with Norman Solomon, and the Torture report with Michael Ratner.