Court: DoJ Can Subpoena Reporter but Won’t Ask to Reveal Source

James Risen, the Pulitzer Prize-winning journalist who has been compelled to reveal a source, has won a partial victory. The Department of Justice will call on him to testify in a case against a CIA employee, but they won’t ask him to reveal a source’s identity.

The confidential source was used in writing Risen’s 2006 book “State of War: The Secret History of the CIA and the Bush Administration.”

The part of the book in question covers a failed CIA effort to undermine Iran's nuclear weapons program. The DoJ believes the source to be former CIA employee Jeffrey Sterling, whom they charged with violating The Espionage Act, initially in 2008.

The case was dropped. But in a rare move, the Obama Administration brought charges back in 2010. The government then tried to compel Risen to testify in the case but Risen appealed the decision. The U.S. Court of Appeals for the 4th Circuit, however, decided that Risen could not decline to testify at court. Risen then appealed that decision, but the Supreme Court neglected to take up the case.

On Tuesday, a federal court judge told Risen he had to appear at the trial, but the DoJ is now saying they will not ask Risen to reveal his source and will, instead, limit questions to the content of his book.

The several-year-long battle over Risen’s testimony may be coming to an end, but it will be without setting a strong precedent benefiting freedom of the press. Several U.S. Circuit Courts have said that journalists have a “privilege” when it comes to keeping quiet about a source, though the 4th Circuit did maintain that journalists can’t refuse to testify in court. Even the Justice Department has “guidelines” limiting their ability to compel reporters to reveal sources.

Still, it brings to mind the case of Judith Miller, who was also asked to reveal a source in court. When she refused, she was held in contempt. It turned out that her source was Scooter Libby, a high-ranking White House official who leaked the name of a CIA operative, the type of source reporter’s privilege was not designed to protect.

As such, an opportunity might be missed in the Risen case. If Risen is not told to reveal his source in court — an action that could be judicially appealed — it will remain unclear how far the government can go in questioning a reporter.