Appeals court orders 'New York Times' reporter to testify

Kevin Johnson | USA TODAY

A federal appeals court in Virginia Friday ordered book author and New York Times reporter James Risen to testify in the criminal trial of a former CIA officer accused of providing classified information to Risen about a botched plot against the Iranian government.

The long-awaiting ruling comes amid a politically charged debate over the Justice Department's investigative tactics against reporters as part of inquiries into unauthorized leaks of national security information. The ruling also comes a week after Attorney General Eric Holder announced changes in the operation of those leak investigations to make it more difficult for prosecutors to obtain journalists' telephone records and other private information.

"The subpoena for Risen's testimony was not issued in bad faith or for the purpose of harassment,'' the court's majority concluded. "Risen is not being called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, and there is no reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement.''

Risen, who disclosed details about a failed attempt by the CIA to have a former Russian scientist provide faulty nuclear weapon plans to Iran in a book, has resisted a prosecution subpoena that would force him to testify in the trial of Jeffrey Sterling.

The appeals court opinion, written by Chief Judge William Traxler, effectively reverses a district court order finding that Risen had a reporter's privilege that entitled him to refuse to testify about the source and scope of classified information provided to him.

"Clearly Risen's direct and first-hand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means,'' the court found.

Yet in a strongly-worded dissenting opinion, Judge Roger Gregory, said Risen's testimony is "by no means pertinent'' to the government's case because what the judge described as the "strong'' nature of the prosecution's evidence.

"The paramount importance of a free press guaranteed by our constitution compels me to conclude that the First Amendment encompasses a qualified reporter's privilege,'' Gregory wrote. "Risen must be protected from disclosing the identity of his confidential sources.''