The Supreme Court on Monday declined to intervene on behalf of a New York Times reporter and author who has been subpoenaed to reveal a confidential source.
The court without comment turned down requests from reporter James Risen and a host of media groups to overturn a lower court order and find that reporters are protected by the Constitution from testifying about their sources.
In a 2006 book, “State of War: The Secret History of the CIA and the Bush Administration,” Risen detailed classified information about the CIA’s efforts to disrupt Iran’s nuclear program. Prosecutors want Risen to testify in its prosecution of Jeffrey Sterling, a former CIA analyst.
A district judge had said Risen did not have to testify. But a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond disagreed in a 2 to 1 decision. The majority said that under Supreme Court precedent, the First Amendment does not protect reporters from revealing who supplied them with unauthorized leaks.
“Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony,’’ wrote Circuit Judge William Byrd Traxler Jr.
Circuit Judge Roger Gregory disagreed. “Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial,” he wrote. “The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society.”
Gregory said there was plenty of circumstantial evidence linking Sterling to Risen and that Risen’s direct testimony was not crucial to the government’s case.
Risen has said he will go to prison rather than testify. But U.S. Attorney General Eric H. Holder Jr. last week said at a meeting with journalists that would be unlikely.
“As long as I’m attorney general, no reporter will go to jail for doing his job,” Holder told those in attendance.
The Washington Post was among the news organizations filing a brief on Risen’s behalf.
The case was Risen v. U.S.