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Fourth Circuit Guts National Security Investigative Journalism Everywhere It Matters
Posted on July 19, 2013 by emptywheel
The Fourth Circuit — which covers CIA, JSOC, and NSA’s territory — just ruled that journalists who are witnesses to alleged crimes (or participants, the opinion ominously notes) must testify in the trial.
The opinion goes on to echo DOJ’s claims (which I recalled just yesterday) that Risen’s testimony is specifically necessary.
Posted on July 19, 2013 by emptywheel
The Fourth Circuit — which covers CIA, JSOC, and NSA’s territory — just ruled that journalists who are witnesses to alleged crimes (or participants, the opinion ominously notes) must testify in the trial.
There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.
With this language, the Fourth applies the ruling in Branzburg — which, after all, pertained to the observation of a drug-related crime — to a news-gathering activity, the receipt of classified information for all the states in which it most matters.The opinion goes on to echo DOJ’s claims (which I recalled just yesterday) that Risen’s testimony is specifically necessary.
Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.
[snip]
There is no dispute that the information sought from Risen is relevant. Moreover, it “can[not] be obtained by alternative means.” Id. at 1139. The circumstantial evidence that the government has been able to glean from incomplete and inconclusive documents, and from the hearsay statements of witnesses with no personal or first-hand knowledge of the critical aspects of the charged crimes, does not serve as a fair or reasonable substitute.
[snip]
Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information. And it was through the publication of his book, State of War, that the classified information made its way into the public domain. He is the only witness who can specify the classified information that he received, and the source or sources from whom he received it.
- See more at: http://www.emptywheel.net/2013/07/1...onal-security-journalis/#sthash.Xfd9UUsc.dpuf[snip]
There is no dispute that the information sought from Risen is relevant. Moreover, it “can[not] be obtained by alternative means.” Id. at 1139. The circumstantial evidence that the government has been able to glean from incomplete and inconclusive documents, and from the hearsay statements of witnesses with no personal or first-hand knowledge of the critical aspects of the charged crimes, does not serve as a fair or reasonable substitute.
[snip]
Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information. And it was through the publication of his book, State of War, that the classified information made its way into the public domain. He is the only witness who can specify the classified information that he received, and the source or sources from whom he received it.