Federal prosecutors have subpoenaed New York Times reporter James Risen, to try to get him to testify against a former CIA operative accused of leaking classified information about U.S. covert programs that later appeared in Risen's book State of War.
The subpoena was disclosed in a court filing late Monday night in the Eastern District of Virginia, where onetime CIA employee Jeffrey Sterling awaits trial on charges that could send him to prison for decades.
The Justice Department filing calls Risen "an eyewitness" to the alleged crimes and a "critical" figure to the government's case who can provide information that it can't get from anyone else. Prosecutors want to use Risen's testimony not only to point the finger at Sterling but also to establish that key actions took place in Northern Virginia, where the case will be heard.
Risen successfully moved to quash an earlier government subpoena and prosecutors said in their latest court filing that they expect him to try that strategy once again. Joel Kurtzberg, an attorney for Risen, confirmed Thursday morning that his client has been served with a subpoena and said "we do intend to fight" it. (Note at 9:45 a.m. ET: Earlier, this post noted that Kurtzberg hadn't yet returned a call for comment.)
The case raises the specter of another First Amendment showdown involving a New York Times journalist. In 2005, then-Times reporter Judith Miller spent months in jail after prosecutors tried to get her to testify against her source in an investigation of the leak of the identity of CIA operative Valerie Plame. After about three months, Miller worked out an arrangement with the government and left custody.
The Justice Department said in its court brief that Risen should enjoy no "reporter's privilege" and that prosecutors don't need to delve into the specifics of any confidentiality agreement Risen might have had with his source. Instead, they wrote that they are after specific information Sterling might have offered about an Iranian nuclear program that later appeared in Risen's book and when and where the information was shared.
Prosecutors reported in the filing that Sterling apparently denied he was Risen's source in a 2004 letter they found on his computer, suggesting that staff members on the Senate Select Committee on Intelligence were the culprits.
The material at issue in the case did not appear in the Times. The paper's editors apparently declined to publish it after hearing out concerns from senior Bush administration officials.
Update at 9:25 a.m. ET. Justice Department Statement:
Federal prosecutors try to "strike the proper balance between the public's interest in the free dissemination of information and effective law enforcement," Justice Department spokeswoman Laura Sweeney says in a statement the department just released.
"We make every reasonable effort to attempt to obtain information from alternatives sources before even considering a subpoena to a member of the press, and only seek information essential to directly establishing innocence or guilt," Sweeney added.
Issuing a subpoena to a reporter requires permission from the attorney general — the highest level of the Justice Department.