'New York Times' Reporter Subpoenaed

The Justice Department has subpoenaed New York Times reporter Jim Risen to provide critical eyewitness testimony it says it can't get any other way in the leak case involving former CIA operative Jeffrey Sterling. Risen says he'll ask a judge to quash the subpoena, setting up a First Amendment fight and a game of chicken with high stakes.

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Federal prosecutors are taking the bold step of sending a subpoena to a reporter for The New York Times. The Justice Department says James Risen would be a critical witness in the case against a CIA agent accused of leaking classified information. But Risen's lawyer says they'll fight the subpoena.

And as NPR's Carrie Johnson reports, that sets up a big test of the First Amendment.

CARRIE JOHNSON: It's the legal equivalent of a game of chicken - two cars moving toward each other at high speed, neither one wanting to swerve away. First, there's the Justice Department. Prosecutors there are intent on making a case against former CIA employee Jeffrey Sterling. He faces criminal charges for passing information about classified programs to a reporter.

And then, there's that reporter, James Risen. He wrote about the CIA during the Bush years in his book, "State Of War." And prosecutors say Jeff Sterling was one of his sources.

Ed McMahon is a lawyer for Sterling. He says the whole episode is shrouded in secrecy.

Mr. ED MCMAHON (Defense Attorney): Well, it's the government's right to publish literally whatever they wanted a criminal case, but it doesn't free me to make any comment about it whatsoever.

JOHNSON: Until the government's court filing Monday night, no one had acknowledged that Risen was Author A, mentioned cryptically in the Sterling indictment.

Mr. MCMAHON: I find this filing quite interesting in that regard. But I can't say anything about it.

JOHNSON: Given a choice, Risen would prefer that, too. Through his lawyer, Risen says he'll ask a judge to throw out the subpoena. He won that fight once before, last year, before Sterling was indicted by a grand jury. Now the judge will have to balance national security interests against press freedoms, and figure out whether anybody got hurt because of the disclosures.

Justice Department prosecutors say this time they really mean it. Laura Sweeney is a spokeswoman for the government.

Ms. LAURA SWEENEY (Spokeswoman, Justice Department): We make every reasonable effort to attempt to obtain information from alternative sources, before even considering a subpoena to a member of the press. And we only seek information essential to directly establishing innocence or guilt.

JOHNSON: To First Amendment lawyer Martin Garbus, the fact the government needs Risen so much exposes some problems with the Justice Department's case.

Mr. MARTIN GARBUS (First Amendment Attorney): There's a reason for the government to play that card showing how weak their case was, at any time prior to the trial, the government may hope that there'd be some kind of disposition, some kind of plea.

JOHNSON: But there hasn't been any plea. And as the trial date gets closer, the stakes are getting higher for the government and for Risen. Remember former New York Times reporter Judith Miller? She spent months behind bars for refusing to say who leaked the name of CIA agent Valerie Plame.

Here's Miller talking to reporters in September 2005 on her way out of custody.

Ms. JUDITH MILLER (Former Reporter, The New York Times): I served 85 days in jail because of my belief in the importance of upholding the confidential relationship journalists have with their sources.

JOHNSON: At the time, Miller hoped her experience would lead Congress to pass a federal shield law, giving reporters some protection when the government asked for sources. But six years later, that effort has stalled in Congress and it won't be any help to Risen.

Carrie Johnson, NPR News, Washington.

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