memorandum opinion granting motion to quash subpoena ... · is rinan'e motion to quash agrand...

In re:

Grand Jury Subpoena toJames Risen

]%-lOtKMtS

P 11 LIN THB TOUTED STATSS D»«»*Kg* FOR THE b

EASTERN DISTRICT OF VIRGINIA •Alexandria Division

l.oadmsi 0*BJ| CLU,u.s.nmsA,H.CTCOu'RTCOURT

ceo;.Wife

OWCK

A faderal grand jury haa been investigating how highlyclaaaified information about a Central Intelligence Agency

(*CIA*1 operation BBBBHHBBBHHBH^e^^^^^"^^^^^

H>B«"lott*** to Jott"»liflt Jw*»,RU*a' BBfore ***co^is Rinan'e Motion to Quash agrand jury subpoena that eeek* hietestimony about hie reporting. For the reason diecueeed below,Risen'a Motion to Quash the subpoena haB been granted.

I. Background

A. Chapter 9 of gfrat.ffi P* wftT

in January 2O0«S, Mm publiahed abook about the CIA, filSES

rf ffffl~. «h» a^rrr ^«vry "« *'" ™ ™fl rh" ftumi ^"^ra*1:'fm-itt. of war") . Chapter iof gttfct tf WftT describes acovertCIA operative'a attempt* to provide Iran with flawed nuclearweapon plane under a highly classified CIA program,

M reported in Chapter 9, the CCA recruited aformer RiwU*scientist, identified by the codeuame -MBRLIN,- to provideIranian officials with faulty nuclear blueprinte, as part of eCIA plan to undermine Iran'a nuclear programs. According toRisen, the elawa in the blueprints were immediately spotted by

Case 1:10-cr-00485-LMB Document 118 Filed 06/28/11 of 35 PageID# 999~ .

..

IN rnm U»lfBD ft)'1'1IS DLmU'Ct COO'ltT FOR DS'l'I:RB DISftICT 01' VtRGUflA

JUexandld ... Division

8

JUN 282011 In re: I lr08dm61 f~) , CLERK, U.S. DISTRICT COURT

I A, VIRGINIA Grand "ury Subpoena to Jam.es R1sen

) mmB I'W' COURT '9III" 0I=f1CB

J ~:5U. -: l'fIKOBAmtJ1t QIllUQl

A federal gnnd j~ baa been. 1nve8t.igatinf l'Iow b1.gbl.y

claaa~fied info~.tion about • Cent~al lntel~i~~no. ~ency

'~C1A~) ope~ation

~a lo~ to jOUm41i-at J-amea 'ltJ, •• n. Batore the C~

18 RJ,_an' 8 Motion to Ouuh a grand' jutY sqbpOena that seop b1..

testimony about bis reponing. For .:hlll ~easf)nS di8cussed below.

Risen's Motion to Quawb tbe subpoena has been gra~tBd.

I. Bac'kg:rQ\lnd

A. Cba.pter 9 o£ lit". pf War

In J~lluary :aGOS, llia-en pub11abed a ~co1c al:Iout the CIA, ~

ot war; The '!gat j:l.stpr.Y o{ ~\$ m;&, .me the BUG Mmi'niJ!l~;ati !'

(I\~tat.e pf J!G"). CMpter, of Itlto.. Qt 'far describes a covert.

etA operative'. ae~empt.s to proVide ~ran ~ith flawod nuclear

weapon p1ans un~ a ~~hly claestfLed ClA p~o9ram.

As ~epo~~ed in Chapter 9, tbe CX~ r&cru1ted a fo~mer Rus8ian

scient-iSt, itlent1f1ed by the oo4ename "MBllL'IN,· to p7:OYid.e

Iranian official.S' with fawty n'Ucl,,~ 'bl\.\eprintu, as part of Cl

CA plan to undermine Iran'lJ n\lClnr programs. ~cQrding to

Risen, tnu flaws in the blueprints were ~Ddia~ely spotted by

#Y

the former scientist, Kevertheless, the CIA instructed him Co

continue with the operation and drop the blueprints off at the

Iranian embassy in Vienna. Chapter 9 concludes that the

operation was deeply flawed and mismanaged, because the latent

defects in Che blueprints were easily identifiable, and the

operation actually resulted in the transfer of potentially

helpful nuclear technology to the Iranians. Much of Chapter 9 is

told from cho perspective of a CIA case officer, described as the

Russian scientist's "personal handler," who was assigned to

persuade the scientist to go along with the operation.

IDecl. of Brie B.

Bruce, dated March 7, 3008, |*Bxuce Decl.") at 1 7, », B to

Government'e Bx Parte Submission in Supp. of opp. to James

Risen*0 Mot. Co Quash Grand Jury Subpoena, dated June 19, 2010.J

fl. Risen'0 contacts with Jeffrey Sterling

The government's target in the leak investigation is Jeffrey

Sterling, who was hired as a CIA case officer in 1993. Bruce

>te"

_^^^^^^^^^^^^^^^^^^^^^^^^^^^^mtmm Bruce Decl.at 1^^^Spte^^Osc^epoSSE^B^n^ranian i^^genceofficer provided the CIA with evidence that Iran was behind ibontoixa and that C3X officials suppressed that i»£0f*t*on:_

Case 1:10-cr-00485-LMB Document 118 Filed 06/28/11 of 35 PageID# 1000a

..

the forme~ soient.i8t. Severthele88, the CIA instNoted htM tQ

cont.inua. wi~h ~lta operation and dJi'OP the bl"'aprints off at the

lran1an embasay in viesma. Cbf.pt.r' concludes tbat the

ope~~ion was deeply flawed and m18managed, beoauae the latent

detects ln the blueprints wore easily identifiable. and the

o~erat!on act:ually re8lJltea in the el'ala8ter 0% 1)Otut1ally

be-lpful nuc:le .. r t.echnology to tne lranian.a. MUch of Chapter 9 is

told from tho per8pective of a OA case off1cer; de8~ribeCl as t.t\e

Russian ac1ent~at'B ~pe~sonal handler,· who was a8'1~ned to

pcu:vuade the soi.ent~8t to 9Q ~long witb the operation . ..

bruce, dated Mareh 1, ~008, I-BrUce Decl.-) At , 7, Ex. B to

Gov~nment/e Bx Parte Subm18atou in Supp. of opp. ~o James

Risen's Mot. to Quash Grand Jury s~bpo.na, date~ JUne 18. 2010.'

.B. Risen' 8 ecmtacts with Jettt'ay Sterling

The gavernment's target in the leak ~nveBt1ga~ion ia Jeffrey

Sterling, who waa hiTe~ as a CIA case officer in 1993. Bruce

Bruce Decl . .I.X1.;;~~ •• igence

Iran was beb1nd ~

il.iiii.~ information. -Id. at , 116-118.

MCI. at 113. Prom late 1998 or early 1599 through. April or Hay2000, Sterling was assigned as (^^^^ps^bsbssssbssbss*bbsbssbssss1

^••••••H 2^ at 11 16, 26. Sterling frequently mistwlth ••••••Mssffahd had principal responsibility for

drafting classified reportB about his progress, Jd* at 137After being told that he failed to meet performance targets,Sterling, who ie African American, filed adiscriminationcomplaint with the CIA on August 22, 2000. 14,. at It 17-18.Sterling then filed »lawsuit against the CIA that was dismissedbased on the State Secrets privilege. Sterling's employment withthe CTA ended on or about January 31/ 2002. 14- " 11 19-20.

The government has established that Sterling first begancommunicating with Risen during the final stages of hisemployment with the CIA. On November 4, 2001, Rieen published anarticle in the f *»* »H—. sealing that aCIA undercover^station was located in the 7World Trade Center building.^^^^^•^H|^^^M|H|HH^HHbsbbV Risen quoted

anonymous "former agency official- as his source. I&. at 1*i-BBBBBBBBBBBBBBBBBBBBBBBSl testified tO

48, 52. Former CIA case officer bbbbbbbbbbbbsbsbbsbbbbsbI b

the grand jury that Sterling told her

TO^SSefif^

Case 1:10-cr-00485-LMB Document 118 Filed 06/28/11 of 35 PageID# 1001I

..

~l. at. , 13. prom late 199' or early .1»9 th:oup. Ap~il o't May

~OOO, Ster11ng ~ ~Balgne~ &8

~ at " 16 t 2'.. StKl~ f~tly \'I\'8t.

w1tb .nd ha6 p.r1n~ip~ ~o.ponI1b11ity tar

draft-ing cluaified reporte· aboUt his proF"II. 1Sl... a.t 1 ~.,

Afte~ being told tha~ h~ tailed to ~et perfo~nce targets,

Sterling, wbo is ~r1oaA ~e~ioan, file4 a diaerimlnation

cotllPlai'Ot: witb the etA on August 22, 2000. .I4a. at " 1.7 .. 18.

Ite~lihg tnen f11eQ a lawsuit aga1net the CIA that wae 4ipmilsed

baGed on ~he State Secrets privilega. Ster11ng'G employment with . the CI'A ended on 01" aboue aatnuazy 311 2002. ~ at ,t 19·20.

The govarnme~t has establiahed tba.t Ste~l1Dg firDt began

oommunica~lug with IiDe~ 6U~1ng the e1nal stages of bia

empl0Ytllent w;i.th t.be CIA. On »1'ovemb9r " 20011 R1aeD ~l;l.lJb.~ an

articJ,e in the Bew lAXk 'limUI reveal.ing ttu\t a ClA undercoVOZ'

station was located in the ·1 Wor14 Trade center bv11ding.

Risen quoted ara

ano~oU8 ·to~ agency otfi~ial· as bis eource. ~ at 1 .7-

48, 5~. Former CI~ dase officer

t.he

'3

T$W&$TId*, at I 49.

On Kerch 2, 2002, the p^f vc-rie Time* putoliabed an article by

Risen about Sterling's discrimination lawauit against the CIA.

Id,, at 1 55. The article nuoteB Sterling extensively. Risenwrote that Sterling *was assigned to try to recruit Iranians as

The government alleges that after he was fired by the CIA,

sterling attended to draw attention to fchefMsssBp«>38cC' T"®evidence supporting that allegation is that on Warch 5, 2003,Sterling met with two Senate Select Committee on Intelligence

etaf ters, .^••H and HLsBl to diBCUflB tbeprogram and hio discrimination lawsuit. ' a. at 1 81-82.

Ileter told the government in an interview that

during the meeting -starling also threatened to go to the press,chough he could not recall i£ Sterling's threat related to themmOperation or hiB lawsuit." IsL at 1 6».

Risen avera in his affidavit chat he learned about Che cia

programs in 2003. Affidavit of James Risen, dated February 16,2008 C2008 Risen Aft.") at 1 17. Risen states that he p'romieedconfidentiality to the source <s) who provided the informationabout MERLIN, and that the agreement -does not merely cover thename of the source(e). Rather, I understand my agreement (s) to

JJJMSCt^T

Case 1:10-cr-00485-LMB Document 118 Filed 06/28/11 of 35 PageID# 1002

Id.. at. t .,.

On March 2, 2002. tbe 11K lark Ttmt' publ1sned an art1Qle bt

Risen abOUt Sterllng's di,cr1min~tion laweuit against ~e CIA.

1sL. .t. • 53, The ~icle quotes Sterling exteDSively. Kisen . wrot.e tlla.t Sterling ~wai a8signeCl to try ~o recruit lrauians ~

The government all~B that atter he was t1~.d by the CIA,

s~~rUng atte.ecI to Cb:"aw attentton eo tl1e~8c:t. 'rlle

evidence aupport1~ that &llegatlou is tbat on Ma~ch S, 2003,

Sterling met with t~o ~.nate Seleet Committee on Intel119ance

etattexe, and _ to c11scUSD th9_

p~o~ and bis d18c~1mtnation laWBuit .. ~'at ~ ~1·63,

_ later told the g'ovemlnent in an J.T1l:enj.ew that

during the meeting -starling algo threatened to 90 t.o the press,

though he could bot ~oall if St.~llog's ~~eat related to ~he

_ Op&r .. ~lon or h:t.. lawwit ," & at: 1 6).

a'iaan «vera in hia a-ffLdavit that ha learned abou-e the CIA

programs in 2003. Affidavit of James Risen, aaeed. February 16,

2008 (-2008 Ruen Att.") at 1 17. 1U.een sut.es t!hat he p't'Omiesd

confi4eutiality,to the sQUrae(s) 'who provided ~e information

about Mli:RLIN. and t.bat. the ilgreet1\ent "doe. DOt: merely cover ttta

name of tne 6ource(a). Rather, I understand my a9r88ment(s) tc

%?

require me not to reveal any information that would enable

someone to identify my confidential source(e)." Reply Affidavit

of James Risen, dated July 6, 2010 (*2010 fciaen Reply Aff."), at

1 5.

Between February 27. 2003 and March 29, 2003, there ware

seven phone calls from sterling's home telephone in the Eastern

District of Virginia to Rieen^a borne telephone in the District or

Maryland. Bruce neel, at 1 6Sf Government'a opp. to jamee

Risen's Wot. to Quash ©rand Jury Subpoena (*opp.") at 9. On

March 1©, ?003, Sterling sent an email message to Risen with a

reference to a CHM.com article entitled*. "Reporti Iran has

•extremely advanced' nuclear program,* In the message, Sterling

wrote, *i»m sure you've already seen this, but quite interesting,

don't you think? All the more reason to wonder..." Id*, at 1 68.

On April 3, 2003 - four days after the last of the eeven

phone calls from Sterling'a home to Risen'e home - Rieen called

the CIA Office of Public Affairs, asking about an operation known

as esBBBBBssBsfli that involved IIHHIHbsbsbssssbsbbbbbssbbsbssssbbssbsbsI•BBSssssBSSBBSBBfls 23*. at fl 68. Also on April 3, 2003, Risen

called the National Security Council's Office of Public Affairs

for comment about the operation. IsL. at 1 69»

On April 30, 2003, former National Security Advisor

Condoleszza RiceT former CIA director George Tenet, and three

oehefr CXfl and tfsc staff members R»C with Risen and BW forK TJifflM

Case 1:10-cr-00485-LMB Document 118 Filed 06/28/11 of 35 PageID# 1003J

requ.ire me not to t'8vaal ally W=tnat:.i~ that would encl.

8omeone t<:l 1d~t;ifY my cocf14eneh.l 80Uroe (s.} ,II bply Aft1dav.it

of Jame-I1 JUsen, dat.ed July 6, 2010 [ .. 20·10 ltl·aen Reply Af!. II), at

1 5.

Between Februazy 27, 2003 and M~ 29 I '2001, t:.bare ware

.even pbone calls t¥Om st~l1bg's home talephone 1n the Bastc~

Dist~ict at ~1rg1a1. CO ~aen~8 ~~a tetephono in tne Dl.~rict of

Marylan~. Druas. neel. at" 6S, Govln'nment'u Opp. tQ James

R.isen' 8 Mot. to Quash Grand au~ S\lbpouna ("'Opp,'" Lt 9. On

March lD, ~OOJ. S~e~lin1 sent Qn email message to Risen wieh a

refe~~nc8 to a CNN,coft article entitl~t ~Rapartl Iran bas

lext~emely advanced' Ru~~ea~ program,~ In the meesaga, Sterling

wtoot-e, ~I'm 8U~. you'...,. a.lftady _8811 this. but qUite int.e:-est:.iag,

c1cm.' t Ycnl t.b1nlt? All the lnOT08 rauou ~o \fCmder ..•.• " lSL. at. , 66.

On April 3. a003 - tour days atter cbs lastot the ueven

phone calla f~m St$~lLDg'a home to Rieenls home - Rieen c~~lea

the CZA Office of P~b11c AffAirs, asking about an ope~ation known

&8 that 1nvol.""~

~ at , ,&, AliO on Ap~1l 3, 2003, Risen

called ~be vatianal Seourity Counc!l'. Offiaa of PUblic Atf~ra

far Clomment about the open.tion, 1b at , '69.

On Apr11 30, 20Q3, former NAtional S.curi~ Advluor

Conc!ol«oz-za Rice, tCi~ CIA director Georr98 Tenee, and three

otbet C%A and ~SC staff ~bers ~t wltb Ri_en and HOW Xgtk Timal

JSMfCRfTWashington Bureau Chief Jill Abramson in an effort to convince

them to publish an article BIHHBbbsbbbbbbssssbbbssbHI

because it would compromise national security. Id*, at 11 72-76

During the meeting, Risen statjedl

Id. at 1 74. On or about May 6,

2003, Abramson Cold the government that the newspaper had decided

not to publish the story, Id,, at 1 77.

Risen continued to pursue the HeP^ as part of a

book that be waa writing about the CIA, and the evidence before

the grand jury shows that he kept in touch with Sterling, rn

approximately August 2003, sterling moved from Virginia to his

home state of Missouri, where be stayed with £rlends, |^| andm|M, iflj_ at 178. phone records for theHLssH pnonedocument 13 oalls between the tfo« Vorfc Elmes office in Washington

D.C. end their home. I&* at 1 79. ||^B*^bsHbbbHbH*""*testified before the grand jury that they did not receive calls

from anyone at the new yarte Timaa. XsL. The government also

found records of phone calls between the ffew York Tiroes, and

Sterling's cell pbone and work phone extension at Blue cross/alue

Shield in Missouri, where he began working in August 2004.

Sterling had access to the HHHj computer, and an FBI search


Washington Bureau Chief Jill ~raMQon tn aD ertort ~o ~nv1nee

them to not pUbliah an articls.

because it. woUld compJ:Otds. natiOAal sewrity. J4,.. at " "2-"16.

OJ) or abo\lt May

2003, ~ramBon told the gove~nt that th. newspaper had docided

not to pub11sh tb!, atory. 1SL. at , '77 • . Risen cont4.nue"d to PUl'DU8 the .-"~ot"f aB part ol a

):)Qo'k that be WIle writing abaut the CIA, and ~e ev1c1enae betore

the grand jury ahows that he 'kept in touch w1t:b Starling. xn

approximately August 20~3, Ste~ling moved t~om Virginia to hie

bome atate of Missouri, wbere be 8tAyed w;l.th 1!riendS,. ilnd

:m... a~ , .,8. Phone. reoarcbl tor tll" _ pt\one

~ocument 19 oalla ~otweeD tha He' fork ~mt' office in Wa8~in9ton

D. C.. elK!: theiJr ho1a. ~ at. , 'n. _'&'04 have

teetj,f:i.e4 bef~ t.l\e grand jUlY that th~y ~ 1I0C l"e¢e.i.ve c.a.11&

frCll\ anyone a~ the Nmt XOl$ 't'ipW!!. l,{:L. The government alBo

toun4 records of phone calls bet-ween t:.be Nb 'Ygp Ti.Jya. and

sterling's cell pbone and work pbone extension at Blue cross/slue

Sh1eld in Mi8sour1, wnere he ~egan· working in AUgust 2004.

Starling h&d acce8S 1;0 the _ comp,ator I and an }PBI 8ea~n

6

of the computer revealed 27 emails between tfterling and Risen,

including a May 8. 200* message from Risen to Sterling, stating

*I want to call today. I'm trying to write the story*. Idu at 11

81-85. A forensic examination of the^U|computer revealed a

string of characters tfiat indicate afile called •BHH.wasonce viewed or saved on chat computer. &L. at 1 B6.

Moreover, during a search of Sterling's personal computer,

federal agents found a letter to *Jim* that was created on March

19, 2004. figs Tab C to Qpp. Brief, the letter describes

Sterling's discrimination complaint and meeting with Senate

staffers. The letter states Chat *[t)or obvious reasons, I

cannot tell you every detail." Id*, at 2.

the grand Jury that some time between October 2004 and January

2006, Sterling told hex about hie plans to meet with "Jim,'' who

had written an article about Sterling's discrimination case and

was Chen working oi\ a book about the CIA. Sruce Decl. at 1 90.

•^B testified that she understood "Jim" bo be James Risen.

Ifl* at 1 91. According to|^m|, when the couple saw gtftt* Ptfear in * bookstore, Sterling - without looking at the book first

- toid^H|H that Chapter 9 was about work be had done at the

CIA. Z&^ at 192. Additionally> ^HsHssssB a tormxgovernment intelligence official with wtoom Risen consulted on his

stories, told the grand Jury that Risen told him that Sterling

TSE-SfOfET'


of the c:ompuber revealed 27 nails hetweeQ gturl.i.ng and Risen"

1nalu41ng a May 8. 2'00" lIa •• age il'.o1I lUCIen to Sbil~11n9" stating

'ttl want to call tOday. I'm trying ta wrj,1;8 the story". lel .• Q.t. "

81.-85. A forensic exatI1i.na1:iOl\ of tn _ oQl9\l,",-t- t:evealed a

string of charactera that incu'c&te a tile caUed_WilB

once. vi-awed or saved on Chat. eamputeJ'. IsL. CIt; 1 86.

Moreover, dUring fA 8~h of 8tel'~ing/l! ,er!l~Jnfll ccmrputta,

teden.l. sgent" Zo\lf1d a. l.ettu to "'Jim" t;l1&~ _. creat.ec! en Mayall

19, 200.. §;Is T~ C t.Q gpp. ar.1~f, 'the letter ducribes

St.rlln~'a discrlminaeian aompla!nt end mee~~ns witb Senate '.

staffers. The leeter stateD that; "[f) or obviCNI'rea~B, I

cannot:; tell you every det. .. U. If ~ at 2.

t.Bst.1fiecl b.tore

the grana luYy t.hat 8on.8 time bet:.~en, october '004 and JanUtl:ry

20Q6, se.rll~9 to~d bar about. hie plana be meet wi~h ~Ji~l~ Who

had writtell i&ilo ut1c;l1l abo"t; S\::d'ling' s d.:h,,:~it1\i.nation case .na , was tb~ working on a. book about the en. SXUce Decl, at .. ~ Q •

_ t.ea~if.ied tha;I; ISh .. understood "Vimll bo be Jall\e8 Risen.

l!L. at 1 91. Aoco.~ing to _, wAen tho couple saw §.!iN Of

!A£ i~ a bookstore, Sterling - witho~t loo~ing at the ~ook first

-, tOld)lllllll that Cbayter , was abOut ~ork b~ ba~ 4ane at the

C,IA', u..... ae t 92, MditiOllAlly I a tormer

fOYe~ent ~telligenoe oft1a!al vith wbQm Ri.e» consulte~ on h1a

utQrie~, told the gran4 j~ that Rieeu to14 him ebat Sterling

7

was his source for information about the

at tff 53-109.

in a book proposal sent to Simon fe Schuster in September

2004, Risen deacribedi

Ioperation. 1st*.

IjL. at 1 106. Risen and the publishing company reached a

publishing agreement and in sfovetober 300S. Risen sent a final or

near-final version of the manuscript to Simon & Schuster. IsL at

1 106.

in a classified filing dated March 7, 2008, the government

admitted that the above-described evidence amounts to probable

cause to indict sterling:

The evidence gathered to date clearly establishesthat there is at least probable cauee to believethat Jeffrey sterling is responsible for theunauthorized dlBciosuxeof classified informationregarding the pMesHHTOperation. to James Risen,and three federal judges have also made a similarfinding by authorising the search warrantsdescribed above. The Government believes thatthere is also probable cause to suggest thatJeffrey Sterling is further responBible for the((••••••••••••••••sbsT0^8^00037811'described above. However, the Government furtherbelieves that this matter warrants additionalinvestigation to insure a proper charging decisionbefore an indictment is presented to the GrandJury.

Id. ? 142.3

*The Court strongly disagrees with the. government's decisionto redact Paragraph 142 of the Bruce declaration from the

Case 1:10-cr-00485-LMB Document 118 Filed 06/28/11 of 35 PageID# 1006· ..... ...

was his souroe for information about tl1a _~Ope-Rt1on, I!L..

at '" '93-109.

1n a book proposal sent to Simon k Scbuster in September

Risen and the publiehiDg company reachdd a

PUbl1Gh1ng agreement and in ~oye~e~ 3005. Risen sent a final or

nea~-final version ot the manuscript co Simon & schuster. ~ at

t 108.

Zn a clasaified fi1ing dated ~ch 7, 2008, tbe 90vern~ent

admitted ~at ehe above-deadribed evidence amounts tQ pxobable

oa~B. to indiot sterlini:

~~ evidence gathered ~Q date aleaxly establishes that there i8 at le~et probable cause to ~eliBve that Je£frey seerling is responsible fo~ ~ , unauthorized ,1BClosure of classified information regarding the I _Operation. to Jeunes Risen, and three federal judges ~aV8 also mace a similar finding by autho~iB~ng the searCh w_~antB de8crib~d above. The Gove~nt believes that there la also p~obabla cause to augwaat that veffrey Ste~ltng is further responsible ~or tho

41sQloI!JQreIJ described above. However, the Government further be~ie~es ~hat chis matter warrants ~t1onal invest'g&t1on to insure a p~per cha~91ng de~ision before an indictmen~ is p~e8ented to the GrAnd Jury.

la. , 142.:1

Zorhe Court stTOt\gly <UaSgToes with. the 90V9rnGl&nt's decision to redact paragraph 142 of the B~e deolaration from the

8

C. Subpoenas to Risen

A grand jury sitting in the Eastern District of Virginiabegan investigating the disclosures about the ssMsftoperation inor about March 2O06. ISL at t 9. On January ze, 2008, the

government issued Its first grand jury subpoena to Risen I"2008subpoena"), eeeking testimony and documents about the identity ofthe Bource(B) for Chapter 9and Risen'* communications with thesource(0). Riaeo moved to quash the subpoena, arguing that thereporter's privilege under the First Amendment and federal commonlaw protects him from being compelled to disclose the

information.

Risen'e motion to quash was granted in part and denied inpart, after the Court found that the government already hadstrong evidence against Sterling and that Risen's testimony wouldsimply amount to -the icing on the cake." However, because Risenhad disclosed Sterling's name and some information about hisreporting to••••H the Court found awaiver as to that

material provided to Risen'e counsel,***««** £ v******information in the declaration, this P«2^.<2g~1absolutely no information that would c0^°;*f^*i0£UBe existssecurity. The government's admission that probable "f?»*J™£fis significant, and it likely would have °™~* ^leaSon^to prlsent different arguments to the Owrt. *£££*^**the entire paragraph is i«^^«Jb60^u"^,5!ra^Ser theappear to divulge national security information.J™***'""paragraph confirms a conclusion of law, If the J^SST'iJ gouldconctrn la that pooenames for the programs ar te*f£*' £*°nhave redacted those names but left the remainder of the paxagrapnunclassified.


C. Subpoen.ut to ~iS8ft

A grand jury &ittillg in the Jut.em'D1atr:i.ct of Virginia

began lnve81:igat.inS' the diliOloeu'A8 about tba _.cpuati<m ip

01:' a1:sout: Man=b 2-006. Xd- at f ,. on JDuaiy 2B, 20~B, ebe

gOVernment issued lta tlrtt grand jury ~o.na to Risen lQ200B

aubpoenaW), .eektnr ~esti~ and document. about the idon~l~Y'of

the Bource{s) tor Cbapte~ 9 ~~d atSeq'_ commun1cationa with the

BOUroe (.,. Ri"n lnOVad to qUaeb the aubpOelli r ~u:guing that the

reporter's pr1vl~ev& under the ri~8t Amendment .nd federal cammon

~w pro~oct8 him froM being cO~8l1eo to d18c~ose the ",

information.

at. an I a mot.:l.on to quash was granted in part and d8nie~ in

pa~t. after the Ccurt toun~ ehat the goveTn_snt already had

strong enridence against. Sterling and t:.hat JU.son l B testimony would

sinlply amQunt to 'tbe lc1f1g on' the cake." KoWaVGl=", b.caUlle Risen

had diaclosed 8terling's na~e and lome tnformation about his

reporting to the cow:t- ~oand a waiver as to tbat

rnate-rial prOV14ed to JU.stm' 8 counsol. 'Like ft\uch of the Ndaat." informat1on 1n tho dec~~at1on, tbl. parag~aph COAtaina ~b801utely no intormation that would comptomi8e national , socurity. The gov~~'a a~mi~81on tb~t p~le cause exists 1s significant, and J,t likelY would bave aauNci ai.an'·" counsel to p)';'aS\lnt cUtfel'!8IJt ill:'g'Um1Q't.. to ~he Cou'Z"t.. eU.asUlcatlan ot the en~ire plll:'agnpb i. i~oper beoau,'. the paragraph Ooe~ Qot 'appear 1:.0 divu~qe nat10rtal B~ity intOl'lt&tion. It&t:heX'I the p~pb confirm. a aonoluaion of law, XI eha government's c~nceX'n is that ~o4~ame8 tor the prog&a.e are tevaale4, it COUld have rsdadt~d thoDe names but laft tbe rema1nde.r of the para.graph unclassi f ied .

1STinformation.

Both Risen and the government sought reconsideration. Risen

filed affidavits from himself and ^Hsssath5Lt ***** claims

establish that their discussions were part of Risen's reporting

and therefore that no waiver occurred, While those motione were

pending, the government ordered Risen tc appear before the grand

jury with less than 48 hours notice. The Court granted RiBftn's

motion to stay, and nothing more occurred until July 21, 2009,

when the Court aeked both parties for a status update because the

term of the grand jury which had issued the 2008 subpoena had

expired. The government responded that ita investigation was

continuing and that it had convened another grand jury during the

week of July 27, 2009. on August s, 2009. the Court issued an

order staying argument of the motions for reconsideration, to

allow the new Attorney General an opportunity to evaluate the

wisdom of reauthorizing the subpoena, given its significant First

Amendment implicatlona.

On January 19, 2010, the Attorney General authorised the

Issuance of a second grand jury subpoena {'2010 subpoena*). The

subpoena issued on April 26, 2010. Onlifce the 2008 subpoena, the

20X0 subpoena does not ask for the identity of confidential

sources) Instead, the subpoena demandB Risen'9 appearance before

the grand jury and requires production of a broad list of

documente and information. Among the requested documents are all

10


intormatio'h.

Bo~h Riaen an4 ~B governmen~ Bought reaanaidaration. Kieen

filed affidavits from hinwelf and _ t.bat: Ria6n ~laimll

establish that ~b8ix d1.CU4eiane were par~ ot Risen's ~portin9

and tberefore that: no waiver occurred. While those motions were

pen~!ng, the government ordered Risen tc appear before the grand

jury wi.th less tban 48 hO~8 notioe 0 'L'h.e Court ~&nted 1tiB~'"

t'DOtion to 8t:~, and not:hil1g mora ooc:u't'red un~il July 21, 200',

when the Court a_ked both p~~e8 far a 8t~t~s ~ate because the

t.erm of tba gran4 jUry whir:h had issued the 2009 subpoena bad

expi~ed. The government re.ponaea tbat ita inveat1g_tioD was

continuing ancl t:bat 1t ba4 c:onvened another grand jUly eluTing thft

wee); of July 37, 2009. on AUgust s. 2009. the COul:'t iSlLued an

order Btaying a~~~ of the moeiona for ~econa1deratlon, to

aUo,,", l:he new A~torn8y General an opportunity to evaluate t~"

wlsdom'of ~utho~izing the 8ubpoen., given its significant ?1r.~

~e~ent ~licat1cn8.

on J·anua.ry 19, ;ZOlO., t,.he Attorney General authorlte4 the

i'BBuance ot a eEicond gra~ jury subpoena ("201.0 subpoena."') 0 The

eYbpoenA isaued on Apri2 26, 2010. Cnl!ke tbe 200~ subppqna, ~he

201.0 8l!Ibpoena doe's not .. sk for the 14entity of confidential

sources I instead, the subpoena 4eman~B Riaen's appe~ranca bafo~e

the gr~Q jury and requ~s pro4uct.ion of a tlroac;t 1i81: of

document:s and information. Among tb. requsstec1 documents are all

10

WETRolodex and contact information for Sterling, all notee related

to RiBen'a reporting on chapter 9,f all emails or other

correspondence relating to Chapter 9, and drafts of bock

proposals, Risen has denied possessing any of these document*

other than the Rolodex contact information,

After oral argument on October 12, 2010, the Court quashed

the subpoena as to the document requests, accepting Risen's

representation that the only responsive document possibly in hi9

possession was the contact information and finding that the

compelled disclosure of that information would divulge the names

of confidential sources. The unresolved issue, which is

addressed in this Opinion, is the request for Risen's testimony.'

In a declaration attached to the government'e Opposition

brief, special Assistant united States Attorney William M. Welch

II clarifies exactly what the government would ask Risen:

• Pirst, the government wants Rieen to confirm the accuracy of

the March 2, 2002 article about Sterling's discrimination

complaint and tne CIA's deciaion to fire him. Specifically,

the government wants to aek Risen where sterling disclosed

the information, what other information Sterling provided,

how Sterling provided the information, and when Sterling

'In the October 12, 2010 Order, the Court asked the partiesto provide an update on the status of negotiations on theremaining portion of the subpoena, on October IS, 2010, theparties informed the Court that they have been unable to reach acompromise.

11

ijlWfiCRSf


-Rol0d8% and co~taee infg~at1on to~ Sterling, all nota8 ~elate~

to Ri8~n' B report1ng on Cbaptlft' !I,r all ematl. or ot'ber

cO~~8pon4ence relating to Chapter 9, and drafts of bock

proposals. lU.aen ~B c!elU.ed possess tn9 any ot theBe dOC::~&nt.

otbR then the Koloc1eJc contact; 1nfomati.on,

After oral argument on Octoller 12, 3010 ( the Court quaahed

the subpoena as to the document ~e8t~1 aocepting Risen(s

rep~eaentation that the only ~e8ponl1va Qcuument poa~ibly in his

possession ~8 the contact lntormati~ and tinaing that the

compelled d1e~loeure o! that information WQula divulge the names

Of ccmt 1dential sources. The \U1Te89J.ve~ issue, wIdell ilJ

adaJ;Cs"ec;l in th1.a opini.ons 11 the request. foX' 'Risen's t.estlU1ony.J

In a deolaration atta~hed to tbe government's Oppoattion

br1~, Sl;tectal A41111stant l1nit.u~ State., Att.Clau~y William M. Wel.ch

II c:larifiea e:xaetly what the gove~n.t woUld ask lUeon:

• First, the government wantp Riaen to oonfirm the accuracy ot

~he March ~, 300~ article about Starling·s d1scT1~1natiQn

complaint and ~bo CIA's decieion ~o fire him. speaifieally,

the 90~eramen~ wanta to ~Bk Risen where 8carling disclose4

the information, what othe~ 1nforma~ion Ste~ltng provided,

how Ste~li~g ~rovided tPG i~format1on, and when Sterling

~Xn the October 1;). 301.0 order, the COUl't asked the part.ies to provide an update on ~be _tatU. ot·negotiaeions an the re*1ning portlon of thliJ subpoena. on Ooto~er 1'. 201.0 .. the pattie. intormed t:he Court; t:hat they 'b~ve been unable to reach a conq;rom1Be .

11

provided the informattionf *» well as whether Risen and

Sterling discussed the discriiRi/wtion lawsuit after the

article was published and whether Risen intends to write

future stories about Starling's discrimination lawsuit.

• flext, Che government wants to ask Risen about "the where,

the what, the how, end the when" regarding disclosure of

classified information published in Chapter 9. The

government will allow Risen to discuss sources using agreed-

upon pseudonyms, such as "Source A," rather than their reaL

names.

• East, the government wants to ask Risen about "the where,

the what, the how, and the when* regarding the 2004 latter

that Sterling sent to RiBen.

II. Disoussion

on June 3, 2010, Risen filed a Motion co o^uash the 2010

subpoena under Federal Rule of Criminal Procedure 17 lc)(2), which

provides that the Court may quash or modify a subpoena if

compliance would be unreasonable or oppressive. Risen argues

that the Court should quash the subpoena because ic is protected

by the reporter* s privilege under both the First Amendment and

the common law, and that the 2010 subpoena, liXe the 2008

subpoena, seeks confidential source information. Rieen alec

argues that the benefit of the leaks to the public outweighs any

harm they caused, and that the government issued the subpoena to

12

TQMECwL


provided t~e 1nto~tion, «6 well as ~ether R1~en and

Sterling discussed tba ~1scr~M1~tjon 2awsu1t after the

article was PUbli&bs4 and wbether RileD int.n48 to wxite

fUtu~ &taries aboue S~rling'8 4iactia1nation lawB~t.

• .ext. the gove~t wante to aak Risen ab9ut Hebe where,

the what, the bow, 8Pd tha wh~nrr rega.rdinc; d18cloaure ~

classified jnformation published tn ~er 9. ~e

gov~~nMent will .~low Risen to dieou8B sources using agreed·

upon pseudonyms. such .It "Source ~/" :l'ather than t:.hej.J'" r:eal

tlallea.

• Laut, tb. geweX'ntlient wants to uk Risen abo\tt "tlla Whee,

the What, the bow, AA4 the whon- ~ding ~ 2004 letter

that Sterling sent to Risen.

~I. Disoussion

On June 3, 2010, Risen filed a Motion to ouaBn the ~010

S\lbl'oeua. under hderal Rul-e ot cri1ll1n~l P~c<:.t'lure 1 'tel (2) I wh1c:n

provides that t~ Court ~f quash or m~ty a sUbpoena if

compliaDoe would-be unreaeonable or opp~ea8ive. RiBen argues

tbat tba Court should quaeh the BUbpoena because 1t ip protected

by the reporter's- privilege under bOth. the Firat AmendmeDt ilncl

the com~on law, sn4 that the 2010 subpoena, like the 2008

sUbpoena, sesks confi4en.ttal source int.ol"TM\tion. RiDen ..,18Q

argues that tbe benefit of the leaks to the public o~tweigna .ny

ha.~ they aauE!ed( and that:. the govemmeut 1ssued the subpoena to

12

T004fGt£rharass and intimidate him.

A. Federal Rule of Criminal Procedure 17 tc)(24

Although the government and Risen disagree about whether areporter's privilege applies to this case, it is well acceptedthat grand juries' subpoena powers have some limits. FederalRule of Criminal Procedure 17(c)(2) allows a court Co quash agrand jury subpoena -if compliance would be unreasonable or

oppressive."

The Fourth Circuit has not hesitated to find that Rule

17(c) (2) imposes limits on grand jury subpoenas.

mm grand jury is not ^fettered £^««rg£ ofits investigatory powers. The law '^SdttFSraiidundertaking those practices that do not *l* tJnegrand•lury in its quest for information bearing on theceSslon to Indict. This P«*ibition grtw ££&,£*•grand jury requests that amount to civil ^^JJSsainfldiacovir/as well aa arbitrary, malicious, or haraaamgInquires.

^^ fifcataB T Trti-r T** '*" " «™« lTnrY ?nm#i**J*>J*zj^fc.^iu). « F.M 876, 878 (4th Cir. 1994) (internalquotation marks and citations omitted). Parties may use Rule17tc)(2) to challenge agrand jury subpoena for seekingprivileged material, and Mi)« the absence of such aprivilege, asubpoena may still be unreasonable or oppressive under Rule 17(c)if it is irrelevant, abusive or harassing, overly vague, or

excessively broad.- fflUnad Stem Tt..W M"1 "n * ^^l11ITYpT«W. n-.T. 2005-2). 478 P.3d 981, 585 (4th Cir. 20071(internal quotation marks and citations omitted).

13

,W


haraeu ~nd lntimidaco bim.

A. FedenJ. Rule of Crillinal Procedure l? tel Ca.-I

Although tbe gave~ent aDd ~tsen d18~8 about Whether a

reporter's privilege appl! .. to this caBe, it 18 ~ell accep~ed

t.ha.t grand juries' subpoena powen' have aome U,tI\1tlt. Peatsral

rtule of Crtm1nal ProC:Bdure 17 (c) '2) aUows il court to quasb Ii

graQd jury subpoena ~if compliance would be unreaoonable or

oppre8utvc. "

Tho Fo\lr~h Ci't'CU'i\. bas not. hesitatecl to tind that Rulli

1"/(e) (2) impeaes U,1ftit.a em gnn4 jury subpoenas.

l~}be grand jury i. noe unfettered tn the exeTc1ee of i tS inveBt1ga~orv pOWOl'B. The law ~o~i4B i.t f~olll ~dertak1n9 th08~ practioas tbat do DQt Aid the grand jury in Ite quest t~ lnfoxmation bearing on the dee1a1.on to indict. This prohibition bars, inter ~, grand jury ~equests t~at ~nt to Qivil O~ er~min~l discovery as well as arbierary, mali~!oua, O~ ba~aing '1tlqUlrcs.

'O&a.ted St.ataa t. under 8,.;1. (In·:J! Qmnd Ilux::x },ro9eeslinge No, 9a .. ·1 Doe No, An·1i~1 r '12 F.3d 816, B7S. (4tb. C~~ • .1994) (interne.l

quotation marks and Qitations omitted), Parties may use Rule

11fc) (1) to challenge a grand jury Q~bpoena for seeking

privi~ege4 mater1al, and ~(i)n the abeence ol such. privilege, a

SUbpOena may still be unreasonable Qr oppr.8etve under Rule 11(C)

if it: is 1.rr.,1-evant r ab\1stve or barau81ng, overly vague, or

e.xeosahrely broad.· Dait1td. stites y, ~.r· Seal (In.i' gnnst

~ry pQ~ No. g,K' 2QOI-2', 471 '.3d 98~, 585 (4th C1x. 20071

(1nt:srnal quaeat.ion ma.rks i\nd oitations omittq"I.

13

T8E-«6?$fB. Pirst Amendment Privilege, in the Fourth Circuit

In addition to the Rule 17(c)(2) protections, Risen argues

that the First Amendment's guarantee of a free press as well as

federal common law establish a qualified reporter's privilege

that prevents compelled disclosure of the type at issue.4 The

government counters that there is no reporter's privilege in a

criminal case, relying heavily on Branaburq v. Haves. 408 U.S.

865 (1972), which addressed three consolidated cases in which

journalists sought to quash grand jury subpoenas. In the first

case, a Kentucky grand jury sought testimony from a newspaper

reporter who wrote articles about marijuana production and use.

The reporter had agreed not to name the subjects of the stories,

and the grand jury sought the subjects' identities. 14* at 667-

68. In the second ease* a Massachusetts grand jury subpoenaed a

television reporter who had been permitted to enter the Black

Panther Party's headquarters on tha condition that he not

disclose what he eaw or heard inside. Tha grand jury sought

information about what took place in the headquarters. IflL at

♦Risen also argues that the Court should apply a federalcommon law reporter's privilege; however, the Fourth Circuit hasonly mentioned a common law privilege in passing in Un|frafl {Stfttegv. St^lhammar- 539 P,2d 373 (4th Cir, 1976)i a civil contemptproceeding, in steelhammer. the court's analysis focused mostlyon the Pirsc Amendment privilege. Although other circuits haverecognised a strong teporter's privilege under the federal commonlaw, the Fourth Circuit has not done so. Therefore, the Courtwill limit its analysis to the reporter'* privilege under theFirst Amendment.

14


». P1~st Amendment Ptivilage.in the Fourth Circuit

I'n acJc:J1t1on to the Rule 17 (cl (2.) p1:Otec.tions, lU •• en ar9Uee

that the first Amendment's g~ntee of a t~ee p~e.s as well as

fede%al common la~ establiSb a qualified reporter's privilege

that prevent. compelled d1sclo~re of the type at issue.· The

governlftent covnt8¥1 tbat thwre is no reportu' B privilege in a.

crJ.1I\1nal. cas., relying heavily on IDnlburs v. lJAYI'. 408 U.S.

US C 1912', 'fh1ol1 addressed tbree CONJol.iclClted caees in Ml:lch

journalists sought to qua~h grand jury subpoena.. In t~e first

caeo, a Kentucky grand jury sougbt testimony from a newspaper

rel'oX'tet:" who wrote ar.t:.ic.1.8.8 about niuij\lane.. production and use.

the repQrt:el: 11a.cl agreeo. not to nlllle tl\e subjects ot the, storles,

and \:he grand j~V "OUQ'l\t thfi 8ub~ectllll ident;£'tis15. ~.t U7-

68. III the seoonD t:lasc. a Massach.uaet.t8 grand 'jury subpo.naed a

tala.is1on reporter who had be~n p~Lttcd to en~~r tha S~a~k

Pantber PartY'1J beadq\Jll%tera OR the c:ond1t1on that be not

d~liIC'l08e wha.t h. aaw or beard inside. 'l1ltt grand jury sought

intormation about what tock plaoe in tohe beadquarters. 1sL.. at

·Risen a180 .rguea thae the CoUrt sbould apply a federal comm~n law repo~t~'. privilege1 bowever, the Fourth Circuit has only mention.d a eomnon law privilege in paaaing in Uni~Aa s~11 v, Steelhammat, 539 r.2d 3'3 'tth Clzo.1976), a civil contempt p'roceed1Dg. In S1;'olhaJDm,&", the courtl,s analysis foc:u.sed mOIStly on the Fi.;se Amendment pr1vilege. Although other circuits have recogniz$d ~ .trong ~epo~terI8 pt.1v11ege und~ the f~deral COMmon law, the Vourtb c1reui t ha., not done 10. The.¥'efC't'8, tbv Court will lim1t 1t.a analys!a ~o the reporter'. prtv~leg~ ~er the first Amendment.

14

tjjMtC^672-75. in the third case, afederal grand jury in Californiasubpoenaed the notes and interview recordings of anewspaperreporter who covered the Black Panther Party. Id*, at 675-79.

The majority in Bjf^tes declined to recognise areporter'sprivilege in those cases, finding that

frothing in the record indicates that tnese grand

affiliations for a purpose that wbb not germane to cncdetermination or whether acrime has been committed.

jd, at 700 (internal quotation marks and citations omitted).Although Justice Powell joined in Che majority, be wrote a

concurring opinion to emphasise the 'limited nature" of the

majority'o opinions

If anewsman believes that the grand ^m^$S&Tis not being conducted in good faith he is not «"^remedy, indeed, if the newsman i"=fûouTinformation bearing only aremote w*>!"uo*Ji{m, or Urelationship tcjhesubjoct jjjhe investigation^rhe has soma other reason to belêf.âh7^8 without aimplicateB confidential source &)**£"ships wit"°«legitimate need of law enforcement, $B ""VîJteto the court on a motion to <Jâh ™d **^£°5aim to

5SS5T.S5 5TA5?« gg*SB"with respect to criminal conduct.

Ijj. at 709-10 (Powell, J., concurring).

With B^zbjira as the Supreme Court's only pronouncement onthe First Amendment reporter's privilege, circuit courts have

15

itts_


, I "

612·· .. 75. In the. th1l:c:l CmlC, a federal gnnd jury in Calitorn1a

~ubpoepaeQ the note. and interview recordlnga of a nowupaper

~epor~er wbo GOVez:ec.t tbe Blaok pantbe: Party. lSL. at 675·79 .• . 1be majority in ~~ de~li~sd to reoognize a reporter's

p~iYilege. in ~o.e ·c~eB, !lnd1ng that

(u.Jotlling j,n the record indic.tea that. these g1:a:nd jurie~ were probing at will and without rela~lon to existing need ••. 'Nor did tne granl1 jU't'1ea attetnpt to invade protected Vit'1rt A~ndmel1t r19Ats by forcing wholesale d18elo8u~o of namea and o~gan!sational atfiliatione for a p~poB. that was not ge~~ co the det.ermination of wbethel' a. etime bas been cornmtt.t.ed.

14· at 700 (internal quo~atlon ma~ks and citatlon~ om1~ted) .

Althougb V'1lvt1ce 1'0well. joined itl the majority, he w:rot.e a

conourring opinion to .mpbaai&e tbo ~limitQQ natureH of the

majority'o opinion:

It a newsman believes ~hat the ~an6 jury inveBt1ga~ioD is not being conallct.eCI in good fa1ch he i8 not without reme~y. ~aed, it ene newsman is c&lleo ~on ~o give iatormation DeAring on~y a ~e~ote and tenuous rela~ionBhip to the 8~Gdt of tAe tpvestigation, or i! be bas e~n. other reason ~ believe that bis testtmony implicates confidential source relationships witbout ~ legit~te need of ~ enforcement, he will bave aceees tc:I tho court on .. motion to q\laab and alA appropriate p~otect1ve o~ax may be entexed .. The a~8erted ~laim to p~tvil6ge ehould be ju4ged on ita facts by a~riking n proper balance between freedom of che prase and the obligat1on of all c1t1zens to g1~ relevant testimony with Yespect to criminal oon~ct.

!d. ~t '0'-10 (powell, J., concurring).

With BnMbn;g as the SUPHlR8 CcNrt's only p~uncet!1ant on

the First Amendment ~porter's privilege. circuit courta have

15

J)varied widely on the protections that they provide journalises.The Fourth Circuit has repeatedly followed Justice Powell'sconcurrence by recognising that under the right facts there isqualified protection for journalists. In TMUfflP fr-nttf V^Sis^m^, », F.2d 373 (4th Cir. 1976), the district courtordered several journalists to testify at acivil contempt trialabout statements made in their presence at arally, 1ft, •* 314.Although the Fourth Circuit affirmed the order, it appliedjustice Powell's balancing jurisprudence?

tilt is conceded that the «*«««»**" â'" ""Information sought to be *****S£lSto?£ turnconfidential basis .. ..££%*£ the reportere wereuo even a scintilla oi evww».B »____».„ thai*Subpoenaed to harass them or to "**^£££9 ofnewsgathering abilities ..-^^wSu tn nisinterests suggested by Mr. ™""«" rf ên^ of anyconcurring ^P^1^.^,??^^" lacE%* evidence ofclaim of ccmfiaantîty s«di »%JfJonclu8ion that thevtndictiveness tip the scale to "J* tne reporteradistrict court was correot in requiring ww vto testify.

Id, at 376 (Winter, J., dissenting), sjMtftfJg Mr «*** «banc. S6i P.2d 539, 540 (4th Cir. 1977).

The Fourth Circuit has Since adopted athree-partbalancing test for evaluating whether to enforce subpoenasissued to journalists, in acivil defamation case,l3rDir^Y e.,.^1 Prn^StimCv,, 760 F.2d 1134 (4thdr. 1986). the plaintiff tiled amotion tc compel defendantNBC to reveal the confidential sources behind the allegedlydefamatory statement*, 1ft, at 1137. » affirming the-

16


varied widely on the protec~ion8 tha~ tbey p~vide journalists.

The Fourth Cl~cuit naB ~epeateQly foLlowed JUstice Fewell's

COD~dnce by re~~lug thAt under Cbs r1ght f.~t. there i»

quali!1e~ ,~~ecelon for jOQTnalists. X~ United StAto, y.

StOClhamme~, 53' P.2d 373 (4th Cit. 1976), the di8~rlct court

orcJe~d several jou.rnu11t,iJ to testify at a clv:ll contempt t-rial

abo1;it statements made ~ tn.l:: preSOl'lC1t a.t ~ rally I ~. at J i' .

Although the 1Po~th Ci·reuit attb:med the order, it applied

JU8~ie8' Powell's balancing jurisprudence;

eI) t 11 conoeded that the reporters did not. iJCqu1.re the .1nf"on.at1oD !!fought to be e1ie1 t.ed tl'Om them on a donfide»tta1 baais . . • • t~lhe ~ecord fails to turn up even a scinttllA of ev1~ance that the repo~ter8 were 8u~po.Qaed e(l Mr&lJ8 them ox to em~r.rIl08 th.i~ new'gathering ab11~ti8B . . . . lX]n the balance ot iBtereSt •• ue9S8~e4 by Mr. Juetlce Powell in his concurring opinion in IransbUSq(), tha absence of any clAim of conf14antia11ty and th~ lack of evidence ot vln41ctiveness tip the scala to tbe concluslon that the district court was co~reot in ~equiTin9 ~he re~orters to t.estify.

Bt. at 376 (Winter, J., dieaentl119', A,dopt.eq ~ tile qAYTSC en

~, 561 P.24 53'. 540 '4th Ci~. 1977).

The Fau~th C1rcui~ has Since a4Qpted a three-part

balancing teat for evaluating wh.the~ tG enforce &ubpoena~

issuod to joura..l::lets. In a ci~il c)e'famatiQn CAse,

LaRo»~~~ v, Bational Brqagc.ftt~ng QQ., 7S0 F.2d 1134 (4th

Cir. ~9B6). ~h. plaintlff f11ed & mo~1on to eompe1 defGndan~

NBC to reveal the cODfidant1al sources beb:1.a.4 the allegeclly

defamatory e~atewent~. ld. at 1137, ~n affirming the·

16

TJsUi^district court's denial of the motion to compel, the Fourth

Circuit adopted the following test to determine whether the

reporter had to disclose confidential sources: Ml) whether

the information is relevant, (2) whether the information can

be obtained by alternative means, and (3) whether there is a

compelling interest in the information.* Xft. at 1139.

Because the plaintiff had not exhausted reasonable

alternative means of obtaining the same information, he had

not demonstrated that his interests in fact-finding

outweighed NBC's interest in maintaining the confidentiality

of its sources. Id.

m ^ ^ fflifltn 978 P.2d 850 (4th Cir. 1992). the

Pourth Circuit held that the First Amendment reporter's

privilege applies to criminal eases only where the

government aseke a reporter's confidential Information ox

ieeuee the subpoena to harass the journalist. AB part of

their coverage of a bribery scandal in the South Carolina

legislature, four reporters each interviewed a scace senator

about his relationship with a registered lobbyist, and later

published portions of those interviews in their news

stories, id, at 851. After the senator's indictment, the

United States Attorney subpoenaed the reporters to testify

at the criminal trial, and tha reporters moved to quash the

eubpoenaB, 5ft, at 851-52, The Fourth Circuit affirmed the

17

JOWfCSf


~.tr1ee court's deniaL of the motion to Qompel, the Pouttb

Circuit adopted the following ~88t to 4eterm1ne wh.the~ the

reporter had. to -disclose confidential. S0\1Z'088: -. {l) whethar

the 1nfo~tion ia relevant, (2) whether tho info~t1on can

be Obtaine4 by alternative means, an~ (3) wbether there is a

compelling intereet in tbe 1Dlormat1on.~ ~. ~t 11".

l1ecCiW8e the pla1nt1tf bad not eJCllalltlt.6 reaaonablo

alternative means of obtaining the- same information, he had

not aemonstnted that his il1tarolt-1 in fact-£indinq

outwaighed NBC's inte~gt in maintaining the conf1~ent1ality

of its Bources. ld.

rn lp T8 Sbiin. 978 P.2d BSD ('tb Ci~. l"Z). the

Fourth Circuit held that the ri~8t Amendment repo~~or's

privileg'e applies to drilni:na.1 case.s only where t.h"e

government seeks a reporter's contidentiel tnformatLon QX

iasues t.he subpoena to haJ:a8B the journalist. AS part. of

thei~ coverage of a br~~ 8candal iQ ebe Souch carolina

legislabure. four reporters each interviewed a state senator

about h1.s rela~ionstd.p with a regist.ered lobbyist, and lea1:er

published portions ot th.ose interviews 1rJ their news

utor1es. 1d. at 851.. At"t.er tbe .ana.tor' B indict.lIIBnt, the

United State" AttoJ:ney ."bpaena&d the. repcrrte~8 to celftJ.fy

at the criminal trial, and tbe %~r~rs moved- to quash the

subpoenas I Ad, ilt: 851- 5~ • Tlle Fourtb C-ircuit "ffi;r:med tbe-

1'1

»*Mfc&>V

district court's denial of the motions to quash, holding

that "the absence of confidentiality or vindictlveness in

the facte of this case fatally undermines the reporters'

claim to a First Amendment privilege." 2ft*. at 853; fit*./

Onited States v. ftetran. Criminal »0, 01-405-A (8.0, Va. Aug.

20, 2002) (quashing subpoena to a newspaper reporter in a

criminal case because it did not satisfy the kefrouche

balancing test),

The Fourth Circuit hae even extended the reporter's

privilege to apply to non-confidential information in civil

cases. In church of Scientology International v, Daniels,

992 F.3d 1329 (4th Cir. 1993), the Church of Scientology

sued a drug company executive over his comments to UfiA

Todays editorial board. Although the executive's comments

had not been made under- a confidentiality agreement, the

Pourth Circuit affirmed the magistrate judge's denial of the

church's request to compel the newspaper to produce all

materials related to the editorial board meeting, including

noteB, tapes, and draft articles. Applying tha I&fiftUChft

teat, the Court agreed with the magistrate judge's

conclusion that the church nhad made no effort to pursue

alternative sources of information concerning the meeting."

jft. at 1335.

In Aahcraft v. Conoco. IUc. 218 F.3d 282 (4th Cir.

18


district court,' G den!.al of ~lw mot-iofte to quaeh, holding

that "eha absenoe of oonti~vnt!ality or vlndictiveneas in

the fa~t8 of this caee f&~ally undermines tho reporte~a'

clilill1 to a Fir&t. I",um&nent privilege." l4.. at 853; .;t..,

Qnitpd qta~l. YI &euan, ~1minal No. Ol~40S-A (I.D, Va. Aug.

20, ~002) tquaalUng SU~M to a new.paper "portez in a

criminal case becalJ •• i~ did not aatj.sty ttMs ~aguw

l:Je.lancing teet) •

The Fou~th C~r~u!t ~6 e~en exten~ed the report~r'8

p~ivilege to ~pplV to non-cont!~ential information in oivil

c-.s&e. In ~\),ur£b pf Sgien!(91ggy IQWoat~gn,.l v. P,9io1"

,g2 F.2~ 1329 '4t~ air. 1993), the Chu~ of Scieneology

8~ed a drug company cxecu~1ve ovo~ hi. oom~t$ to ~

Today's ecu'torial board. .Altllou9'h the executive'D comment.&

had not been made unde~ a co~f14e~t1allty agreement, ~~

pourth'Ci~cuit affirmed the ma9iSt~te jude~'s denial ot the

chu'rch'D request. to compel t.he newspape~ to produ.c:e all

materials ~alaeed to the .d1torial boa:d meeting, including

notl!B # t~P9G, and 4n.ft .article.,. ~ppl'Ying- thv wlouQte

teSt; the COUrt ag~aa~ wita the magistrate judge's

conclusion that the a·hurch "bad mec:Ie no effort to pursue

alternative sou.celS,of information concerning the meet.ing."

xg. at 1'335.

In AsAArg..f,t yo QQqoCQ. Ibg., 218 P.3d 282 (4th Cir..

18

iet

2000), the Fourth Circuit reversed a contempt order against

a journalist for refusing to Identify the source of his

information about a confidential tort claim settlement,

holding that if courts routinely required journalists to

disclose their sources, "the free flow of newsworthy

information would be-restrained and the public's

understanding of important issues and events would be

hampered in ways inconsistent with a healthy republic.' 1ft,

at 287.

These cases articulate a clear legal rule. If a

reporter presents some evidence that he obtained information

under a confidentiality agreement or that a goal of the

subpoena is to harass ox intimidate the reporter, he may

Invoke a qualified privilege against having to testify in a

criminal proceeding. The district court must then determine

whether that qualified privilege is overcome using the three

kaRouche factors.

IA] First Amendment journalist privilege isproperly asserted in this circuit where thejournalist produces some evidence ofconfidentiality or. governmental harassment. Onlywhere such evidence exists may district courtsthen proceed to strike a balance between thecompeting interests involved, namely freedom ofthe press and the obligation of all citizens togive relevant testimony with respect to criminalconduct.

united State* v. Lindh. 210 P. Supp. 3d 780, 783 (S.D. Va.

2002) (emphasis addedi internal quotations and citation

19


2000), tho 'ourth CirCUit reversed. contempt order agAinut

,fA journalist tor refu.,ing to identify the Jlource of h1s

.infomatlon about a <:ont1den~ial tort cla1m settlement.

bol(ij,ng that jf court a ~gqeJ.nDly requil:ed joumaU.8ta to

d1seloee their sources, ~the free flow of newsworthy

information would be·restrained and the public's

underatandin9 01 i.PQrtan~ iesuee an~ evente would be

.hampered in way. incons18cent wieh a healthy ~epublic.· 14. at U'7.

~e8e cases articula~e a cl.a~ legal rule. ~f a

I"epol'\;.er presentB sOIfte e'\l'idence that be obtained 1n~omation

under a confidentiality agree~nt ot that a goal ot the

sUbpoena is to harass or intimidate the reporter, h~ may

tnvoke a qualified p~1vile~.· again8t having t~ te8~fV in a

criminal 'Proceed1ng. The "iat-rict C:0\1.r~ muu.t tl\Qn ·geternt1ne

whetb~ ~at quai!fi~4. ~vilege i& ~vercoma using. the three

LaRqu~h~ fac~ors.

lAl Firet Amendment journalist ~ri.11ege 18 prop8~ly aapertad In this o1rcuit where the j~rna11at producea same evidence of conf14ent1a11ty 9.£ governmontal. hara.sment.. Only where such o~ld8nce ex1s~8 ~.Y district eou~a then·p~oce.a to Bertke a baLance'bet~~n the oompeting inte~st. involved, namely tree"om of ·the pres8 and the obligaeion of a11 cleiten8 to give relevant testimony with ~.pect to· criminal coml\l.ct. .

United states v. LiQdh. 210 F. Supp. 2" 180, 783 (B.D. Va.

2002) Ce1TQ:)llaa.is illSc1ed, 1ntex·pal quotation. and citation

1.9

Tfl]omitted).»

C, Confidentiality

The Court has accepted Risen'e explanation of his

confidentiality agreement with his source and that his

discussion of the source wlthH^HsBi was nl8° made in

confidence as pare of his news gathering *

The government: argues that the 20X0 subpoena does not

seek confidential information becauBe it does not require

Risen to disclose the identity of his confidential

source(s). Risen responds that Che agreement with his

confidential oource(s) for Chapter 9 Moea not merely cover

the name of the source(el. Rather, I understand my

agreement(s) to require me not to reveal any information

that would enable aomeone to identify my confidential

Bource(s).* 2010 Risen Reply Aft. at t 5, The government

*The district court in Vn.UBti state* v. Klncf, 194 F.R.D. ^69(E,0, Va. 2000), reached a different result, holding thatevidence of confidentiality *nft harassment is necessary beforejustice Powell's balancing teat is triggered. Jft. at 584.However, that opinion did not discuss Asftcraft,, which had Deenissued five daya earlier. AahjaSalt did not require any•prerequisite showing of harassment or bad faith. Rather, becausethe journalist acquired his information from a confidentialsource, the panel applied the LaRauSltf factors. Moreover, tnecircumstances in gins ate vastly different from the **•"«*,matter, In Kiflg, the identity of the journalist's confidentialsource - a cooperating governmsnt witness - had beenindependently discovered and revealed as a matter of publicrecord. jfl, at 584. Accordingly, when he attempted to invoke tnequalified privilege, any interest the journalist had inmaintaining the confidentiality of the source or her statemencehad evaporated.

20


omitted) . t

C. Conti4entjality

Th_ CoUTt haa aooept.~ Riu8n's explanation of hiS

.cdnrid~nt1allty agreement with bis sou~ce and tba~ his

d1aculliJl.on of the ... ource W1t.h_ was also made in.

conri~ence as part of ~1B newe i&~h8rin9i

'rbe gOYenltl91'1t. argue. tha.t ~be 20l.0 .ubpoena does not

seek oontl~ential iAtorm.t~on beceuB8 1t does no~ require

Rieen bo disclose tne. i~entity ot hie cont1denti&1

source (8). Risen responds ~hat the agre.ament. wt·tb his

confidential IJOU~e(B) tor Chapter 9 "does Dot merely Qover

the name of the aouree(sl. ~ather, 7 understand my

agreement,s) to require me not to reveal any tnto~ation

~hat would .n~ble someone to idene!fy my con~1dential

fJO~e 's)." 2010 'R1leJl Raply Mt. at. , 5. The ,overnntent

'The 4ietriet court in YDJted atltes yl Xiggj t9l F.R.O. 56' (£.0. V •. 2000" ~eached a 4iffarent ree~ltj holding ~bat Gvia_nee of confidentiality ~ harassment is necessary before JUstice Powell's ~la~cin9 teat is triggered. !d. at 584. However, th.t opinion 414 not discuss Ashsragt, wblch had been iSBU~d five d.ya earliar. Ashcraft 4id not require any

. prenquiait:. »howing of harae81l\81lt or bad fa1th.. ~t.he:r, hecause t,he j01.1rnilliat. ac:qu1re.d his iJ\foX'llla.,,;ton tram a confidential aOlJroa. , t:be panel a.ppU.ed the LABou.cbl factors'. Moreover, Ule cixc~mDt~nce8 in ~ ate v.8tly different tr~ tne preeent mateer. In!!Ds~ the· 1dantity at ~h_ iourn.l1st r s confidential source .. a coopeBt1ng government wit-l1ee.a p bad. been independently d1Scoverea and ~vealed as a natte~ ot 'publiC record. ~. at 584. Accordingly, when he attempted to inyoke the qualitied privilege, any interest the journalisl had in maintaining che ecnfiden~ialiey ot ehe 80urce or her statemen~6 had evapora tea. .

20

counters that the promise of confidentiality -only couldhave extended to their names,., nflt their information, because

Mr. Risen published their information in chapter 9." opp,

at 25.

The government's narrow view of the scope ofconfidentiality' has been rejected by many courts, whichhave found that the reporter's privilege is not narrowlylimited to the names of confidential sources but. at

minimum, includes information that could lead to thediscovery of a confidential source's identity, flee, P,**,miff Y HTV-nh^e CntV^. 602 F. Supp. 575, 679 (W.D.N.C1985) (recognizing *a qualified privilege under the FirstAmendment for the reporter both against revealing theidentity of confidential sources end agatnflt revealingmaterial that is supplied to the reporter by such

confidential source") rfcitf F iT* l^mHlA WW*** ™^- ^r1 F^1V league. 89 F.R.D. 459, 496 (CD. 0.1.1981) (quashing subpoena to reporters for -any and allnotes, file memoranda, tape recordings or other materialsreflecting" conversations with listed individuals);Tre^ie. v. Fields, 389 P. Bupp. 1299, 1303 <*.P. «••1975) {-The compelled production of areporter's resourcematerialS Is equally invidious as the compelled disclosureof his confidential informants.").

21


..

oountera that: the Follli.lu! of confidentiality -only couleS

have extended to tbel~ names" ngt ~eir 1nf~tion, because

Mr". ti.en pU!)l i.eihed their infol:1Gc1on itt ~te't" '," opp.

at as.

'l'ba goVeniment:;' B narrow v lew of thl .cope of

"~onfiden'tiallt:.y" bas been rej.ect.ed. hy "any courts, whicb

ha",c found tob&e the :I:'.pDJ:te~18 privilege 18 !lot narrowly

limit.ed to t.he names of con!idential ·sources but. at

minimum, lncludes information that could lead to the

discovery of a contidential douroe'd ident1~y. JCA, e.q&.

~il~cr y. Mec~lonQurg £St~, 602 p, SUpp. !15, 619 (".D.N.e.

1985) (recognizing -a qualified pr1viloia under che F1~8t

1\mendmant for the X'eporte~ bot.h again't nvee.Ung tt\e

tdant.it.y or c:onfidential aou~ee and agai.nllt revealillq

materjal that is supplied to tho ~epcrter by .uuh

confid~tlal source") T k9. Angel •• HCmQrUl CQliaem comm!Jl y, Nat'l 'QQtbal1·Le.~, it. ',R.D. ~a9, .'6 ,e.D. 0.1.

1981) (qUashing sUbpoena to repo~tere' fo~ ftany .nd all

notes. :11e memo~~ tape r.oord1ng~ or other mator1.1a

I:eflect.ing" converaAt.lons with l.1etec1 in4iv1d~a18)'

Lgadboltz y. PielQR~ 189 P. Supp. 1299, 1303 (M.P, Pla.

19~5l [\1The compelled p-rodudt.ion of a reportoJ:" & resource

mat.~ia~. 1& equally lnvi~iou8 as the compelled d~8closure

ot hta ~ont1denti.l 1nto~t8.·'.

21

As Risen explains, confidentiality pledges that are

limited to the name of the source "would be of little value

to a source or potential source. If a journalist were to

withhold a source's name but provide enough information to

authorities to identify the source, the promise of

aonfidentiallty would provide little meaningful protectionto a source or potential source." 2010 Risen Reply Aff.. «t

The Court finds that Risen did have a confidentiality

agreement with his source and that the agreement extendedbeyond merely revealing the source's name hut to protect anyinformation that might lead to the source's identity.Therefore, the Court must conduct the three-part laRBUfibs.balancing test to determine whether the reporter's privilegeprotects Risen from being compelled to disclose theinformation sought by the government,'

*iaen also argues that the government issued the subpoenasto harass him, . ., record of writing

Risen bases his harassment clJ^ ~ Svern^wt's nationalstories that criticl»ed and exposed ^ f^f™6^ ",„ Rle8Psecurity and intelligence t™rt±flM *J}n| *„ilJo for hiewon the 2006 Pulitzer Prize for National *£**^antlessarticles that revealed Che government's domestic warrwiretapping program. 2006 Risen *'f: *'jed'R"^ B^portingincluding former President Bush V^^S^^secutiou.and some threatened investigations and potential p*vb»2008 Risen Aff. at if 25-41. .„.»„., a AM Attorney

The issuance of the 2010 subpoena «*«*» bwausV we doGeneral does not remove the **«**" S^^eSt officials whonot know how many of the f^^^J^^^^l^ *** tosought Risen* s testimony in 2006 are stiiJ- «» ^™»* •>

22

j-*


A& Risen Q~lGJ.na, tfOnf1derl~iaUty' pledgeR chat arB

limited'to ~a name gf the 80u~ce 'would be at little value

to a source or potential source. t~ a jOU%nallat ~ere to

withhold, 1l aourcO'1l name b\.lt provide enough information to

authcr~ti •• ' to iaenci~y tba lourca, ehe, prom18e of

oonf1dentiallty \IlOu14 p~'V'ic1er little ",e~:1ngful proteot1on

to a source or potential 8o~rce.w 2010 Risen Reply Att., ae

, 6.

~e CoU~t finds that Risen did have & cont1dent!allty

ag¥eem&nt w1tb ~1s SOU~de and tba~ tho agreement extended

beyOrld m.ro~y revealing the 8ource'll nama bu.t. t.o protec~ any

1uformation tbat. might lead 'to t.he IOUI:"a8' s idenl;;l.ty,

Tbe~efor8, tbe Cou~t mua~ conduct the ~hree-part ~che

b.lancing test to determine whether the .eport~·8 privilege

protects Risen trom belng compelled to disclose tbe

Wormatlon sought by th. 9'ovemment. ~

~isen. alvo at'gues ~at the govel:'tlRlent tauuc\\ the 8ubpoetlafl to harass him,

Usen bases l1is hara.asment. claiin em his ~ec:ord of writing stories tha~ criti~i.od an4 e~po.84 the gove~ent'B national 8eeuri~y and inlalligence practices ~r1n9 a time of wa~. Risen won the 2006 PUlit.zeT Prize tor Na~1onal aeport!ng for biB articles that reveale4 the government's ~astic warrantle&B wiretapping p~a_. 2006 Risen Aff. at , 4. Many officials· 1ncloding former Pro.i4ent Bush· criticiZed Rtoenl& ~eportin9 and some throatened inysstigation8 and potent~al ~secution. 2008 1ti8en Aft. at " 25 ·41.

-rna issU8l2ce ot t.he ~Ol.O lI\Jl;poena' uncle-r a aew Attorney General does nO~ reIf\QVe tbe "pedt" of harassment I beoause we 40 not know bow ~~~ 01 the at~ornava and government official. wbo aou~h~ Ria.n'B, teQti~cny in 20bB are st1l1 in ~hei: jobU and to

D. Balancing the equities

In its opposition Brief, the government has refined the

general categories of information chat it seeks to obtain

from Risen about Chapter 3\ 1) testimony about Where the

di?closures occurred to establish venue/ 2) testimony about

what information each source disclosed and when the

disclosure oocurred to ensure Chat the grand jury charges

the right individual; 3) testimony about how Risen received

classified information because oral disclosure of classified

information requires greater intent? and 4) testimony to

authenticate Chapter 9.

1. treed to establish venue

The government has a .compelling interest in

establishing venue, "The supreme court has cautioned that

the question of venue in a criminal case is more than a

matter "of formal legal procedures rather, it raises 4d»ep

issues of public policy in the light of which legislation

must be Construed.'" ffi4Ead $W,ri v- Bfaeyaole, 411 F.3d

517, 524 (4th Cir. 2005) (quoting Tilted. 9tar.es y, Johnson*

what extent, if any, they advised the new Attorney General «boucapproving the subpoena. Moreover, the sweeping scope of the 2010subpoena provides some supporc to Risen's harasament argument.fro* example, Riaen'e book proposals could hardly help thegovernment establish probable cause to charge pearling or anyother suspects. However, because confidentiality is sufficient totrigger the LaRouehe balancing test, it is not necessary todecide whether the subpoena was issued, at least in part, toharass or intimidate Risen.

23


D. Balanoin9 t~e _quitie.

In lts OPpositiOn Brief. en. gove~ertt has ~f1nGd che

gener.l categories of intormation that it seeks to obtain

f~~m Risen aboue Chapter 9, 1) testimony about wb.~ tbe

~lfclo.urBB oocurred to 8etab11&b venue, 2' e9stimony about

whAt information eacb .ouroe 6iecloaed and wbsn the

disclosure oOQur~d to ensure that the gT&nd j~ char~e8

the right indJ.vi4ual: 3-) testimony about how lisen received

classified infonl&tion bee_u •• 01."&1 aiecloaure ot clauitiad

ini:o"""'ti.on requireD greater intent.) and t) testimony to

authentiaata Chapte% 9.

1. Nn4 to .atab.l:ieh Vanl.lS

'lb. gova;m~eta-t ,11_. It .campel11l1g l.~e~1;. 1n

~8~abl1~ing venus, ~The supreme _~ baa cauttoneo t~~

~~e question ot venue in a ~r1minal case 1& more chau a

matte~ 'o~ fo~l logal prooedure', ~aeherl it ~aiseB 'dB~P

ipsues ot publia policy in the light of whi~h legislation

11IUSC De construed.'''' united I.~g.tl' v' Bb;.,ol., 411 1'.3d

S17, 53. (ltb C1r. 20051 (quoting Pnited stites V, JgbDJqn t

what extent, if any. tboy ad~i8ed the naw lttorney GeneTal about ap'PJ"OVi-og the s.ubpoen". fII.oreover, the sweepmg scope of t.he '101.0 subpoena provides .0IJI8- SUPP0l"t to 1t1.een'D haras8ment a.~-ent. for exa~la, Risen's book propoeal. oould ~ly balp tbe goveu;nmene oatebU.ah probabl.e cause to charge 8tsrling O:t' any otb.er 8\\ttpQOt8. flow.ve&-, J:1ecause confJ.dentJ.a·11ty 1" sufficient to triggar ths LiRouQbI ~alancinu test, It 18 not neco8sary to decide wheth~r the ~Ubpoena was i_sued, a~ 1ea~t in part, to b&~asB o~ intimidate Risen.

23

323 t.S. 273, 276 <1944)J .

As the government correctly points out, there are four

possible districts where venue could be established! the

Eastern District of Virginia, where Sterling lived until

August 2003; the Rastem District of Missouri, where

sterling moved in August 2003/ the District of Maryland.

Where Risen lived; and the District of Columbia, where Risen

worked, Opp. at s. For prosecutions involving disclosure

o£ classified information, venue ia proper both where the

information is sent and where it is received. Under Fed. R.

crim. P. 18, venue may be in multiple districts as long as

part of the criminal act took place in that district. SflfiHpH-a *>•*!- v. luinxole. 39 Fed. Appx. 839, 841 (4th Cir.

2002).

Although the government's pursuit of Risen's testimonyto establish venue satisfies the relevance and compelling

interest prongs of the U&fiSShs. test, it fails to meet thesecond prong because the governmBnt has not demonstratedthat the information Is unavailable from other sources. Thegovernment merely states that it -cannot establish venue forthe substantive disclosures of classified information by any

nt Mr. Risen'a source(s) to him without Mr. Risen's

eyewitness testimony concerning the crimeo he witnessed.-

Opp. at 6-9.

24


,

323 n.s. 213, 276 (1944)J.

As the govG:r:tunent eOl'rectly pointe out, t.here are four

po6Bible districts where WlNs--gO\\14 oe ."t&b~ishedf the

Eastern Diatriot of Virginia, whe~ St.~lip9 lived until

Au~.t 2003, t.he 3a8tern ~!8trict ot Mi8souri. wnete

Ster11ng moved in A~9uBt ~003, the District ot Maryland.

_here Risen livea, and the Di8t~igt of COlumbia, where Risen

worke«, Opp. at 8. ,O~ pro8eeut~onD tnvolving disclosure

of clue. iliad 1nto~ation, VB~ua 11 prqper Doth Where ehe

in~orm.~L~n 11 lent and where it 1,-recoived. ~ndet ged. R.

crim. P. 18, venue may be in ~lt1ple d18cr~cta as long &$

part ot the criminal act took pl«oe in-that djetr!ct. ~

United @tat,a v. Bintg~e, 39 Fed. App~. 839, 841 (4th clr.

200Z) •

Although the government's pursuit ot R1Ben'p ~e6~imony

to establish venue satisfies the relevance and oompelling

inte~est prongB of the LgIpQCbt teat, it fails to meet ~be

second prone beoause ·the government hal not 4~nstrat.d

that the lnfcmnatian 18 \lnavailable frDm -other sources. 'tbe.

governmene ~erely atatss thae it -dannot estab11~h venue for

the Bubstant:.1ve d.i~clo8u.rell of .cla,.i-U.ed i~eornnr.tion DY any

~ t" t·{r. '-han« 8 source (8) to l\im w1 tbout 'Mr. Risen' 8

eyewitness testlmany conc8rntng the c~imea be witnessed.

Opp. at 8·,.

The government briefly admits it need only establish

venue by a preponderance of the evidence, £a& Bbersola. 411

P.3d at 524 ('The prosecution bears the burden of proving

venue by a preponderance of the evidence and, when a

defendant is charged with multiple crimes, venue must be

proper on each count. Fox some offenses, there may be mors

than one appropriate venue, or even a venue in which the

defendant has never sec foot.*) {internal citations and

quotation marks omitted). As discussed above, the

government has e-mail and telephone records indicating

communications between Risen and Sterling in the few weeks

before Risen' bApril 3, 2003 inquiries about ••• to the

WSC and CIA. All seven phone calls were between Risen'a

home in the District of Maryland and Sterling;* home in the

Eastern District of Virginia. Although sterling may have

provided additional information aboutflBBto Risen after

sterling moved to Missouri, he had already given Risen

enough information about the program before April 3, 2003

for the ciA Director and National Security Advisor to

personally intervene with the plans of the flew yorfc Times, to

publish che article. Risen's specific questions about

•••I on April 3, 2003 indicated that he already knew

many details about the classified program. As the

government acknowledges, it may "rely upon inferences drawn

25

tBMRRv


.l.be govemment br.tefly rldm1ta 1t need only eetabU,sh

.,db. bY' 1:1 pl'GpOadORnCle of tM evidence I .atl [email protected], .. 11

F.3d at 524 r·'1'be pweeQution beU8 tnG bur<1e" of proving

venue by a pnpcm<Jen.ucl!I of the ev14enoe f31d • ..,. ..

deten4t.nt is cbaZ'g'ed witb mult1pla or;tmIJ8, venue 8Nat be

proper on eAGb COUDt. raJ; 80tH off .... ,., ~lleJ:'. may be mar_

thaD one qp~j,a\:e \l'8R~e, or eVeJ1 lilt venue il\ w'hiob ~l\e

defendant has never sec foot,H) (internal c1taeions and

quotation markS omitl:ecl). A8 cU.BOU8ssd ai)ov~~ tba

govern~nt haa e-ma1l and tolophone record. indicating .,

~ommun1oat1ona between Risen and Sterling in the few weeks

before "]lis~n' B April 1, 2003 inqui~l.t about _ to thB

NSC an4 ~I\. AJ:l Beven phone cal14 Were between lU,sel1' S

no1l'le in t:.h& Diat1:id~ of Marylan<l aJ14 St.e%'1.in9'~ B horne in the

Ea&te~ DiBtTict of Virg1ni~. AltbOuwh Sto%ling may have

pJ!'ovide.'d a<2ditional i~Drrnat1on about _to aiaen aftez

st&~ltng moved to Mis80uri, he bad already 91ven Risen

enou9h information abOut tbe ~~ befo~ Ap~il J, 2D03 .,

to%' ~e CD. 1).i1:slJt.at" anCl National Sec:\lI:ity Advisol." to

personally Intervene- w1th the 'plans oj! the "'w KgEk TiM8 to

publish tbe artiole, Ri.~Il' If 8.pea:l.fic quept.iona IlboU~

on Ap:-:i.l. 3. 2003 in4i.cated that 116 al%ea4y knew

many details about the clasI1t1ea program. ·As tne

govemsnellt .. c:~no"~~dge8, it.1 Ilrely Upon inferences drawn

25

from telephone records and other evidence to establishvenue." Opp, at 9. The government clearly has sufficientcircumstantial evidence to meet the preponderance of the

evidence standard for oatablishing venue in the Bastem

District of Virginia. Although the government has acompelling interest in establishing venue and informationabout venue is relevant, the government has failed to

satisfy the second prong of lAfisusbft, because theinformation can be acquired through alternate means.

2. need to charge the right individual

The government next argues that it must ask Risen aboutwhat specific classified information each source disclosedto him and when it was disclosed so the grand jury will beable to charge the right individual(»).

Although the government has an obligation to avoiderroneously charging innocent parties with criminal conduct,there is no danger of that happening to this case. Thegovernment's classified filings demonstrate that there is noneed to exculpate parties other than gterling because thegovernment does not have any other suspect or target toinvestigate. Re the evidence clearly Shows, very few peopleand -cess to the information in Chapter 9, and Sterling wasthe only one of those people who could have been Risen'asource. Bruce Oecl. at 11 110-30. Chapter 9reports two

26


from telephone records and othe.r evtc2ence to eatablish

V8nue,~ Qpp. at 9. Th, 9OVD~nt clearly hap .uffi~iene

c.L:cwruJta~tial. evidence to meet tbe prepom!erQnce of eM

evicSenc:e s-tandard f·ol" oat~l.S.ehtng venue in the saltern

'District of Virginia. Although the gavernmer\t. hu a

Compe~lin~ lnt~reBe iD establishing venue and information

about ~enU8 is relevant. 't.he 90v~mBnt has fa.iled l:C

satisfy the aeool1d pr:ong ot !#89uqha I beOauae the

informat~oB can be acqu1red tb%augh alternate means.

2. ~eed eo d~ge the ri,ht individual

The go~er.nment ne~t argues that it .use a.k Aissn about

What .pacific cla8sitied information each source 418closed

to h.t.m an<i when it was disclosed so the gzoand j\l1;Y 'flUl be

able ~o oh~rge the Tight i~ivia~l(p'.

Al ebo\lgh the 90vernment has ~n ·obl~gatJ.on to avoit'l

arro118OUaly ·cbarginv 1llAOcent. pJ.Tr.ies ~itb c:ririlblal conduce,

ttl"' 1. no f,\iUJge"l:' of that: bat>p«ning in this· csse. The

gnvernment'a ala •• it1e4 fi11ngQ Oe~oDBtrate ~hat the~ 1& no

n~ed to exculp.te parties ather than Sterling because tbe

90vernment does not have any other suepect or ta~get to

1nveat1gate. ~9 the evidence clearly ebow8, very few people

b~d ~~cess to the info%mation in ~pter " and Sterling was

the only o~. of thoaG people ~ho could have- been R~,en'8

aource. Bruce Decl. a~ "110-30. Chaptu1:' 9 reporta two

26

key meetings? a 1998 meeting in San Francisco with CIA

employees and MERLIN, and a 2003 meeting between a former

CIA employee and Senate staffere.

government has not presented the Court with any evidencethat CIA employees knewjhat^terlingjje^until after the leak,

As to|^m|and

the Senate staffers, the government investigated

ae a possible source, and the investigation "has not

revealed any evidence that HLssssB ^W *** *** *l**Ctcontact with James Risen, and certainly no contact related

to theMHM-^Cperation.- HL at H113, n. 30. And whenthe government interviewed •§ to Hovember 2005, he could

27

r, .,-:.•


I

I I

"0

key meeting8; a 19P8 meeting in San franci8co with CIA

employa.8 ana MBRLlN, and a 2003 mee~lnf between a fc~r

CIA ,employee a¥Jd Selta.te ataltaZ's,

gove~nme~c has not prosented the Cou~t with any evidenoe

I11III, the ~enate stafters, the gQve~ent tn~e8tifat8d

_ as a, poS8:f.bl.e SQ\U:'Co, and l;be lnveat.lgat:lon Qhu uo't

~evealed any avidence that ever had auy d1reet , .

c~nt"~t witb James Risen, and certainly ~o contact related

to the Op.~tiQJl." a.. at 1 111, n. lO '. ~d when

t.he g-overnt1\ent 1nterv1e~ecS _ in Novebar 2005, he coulcl

27

not remember

|£L at 1 113.

The government has not presented even a remote possibility

that anyone other than Sterling could be charged with

disclosing this information. Therefore, the government

fails to satisfy tha second and third prongs of the Lakouoho

test.

3. Need 'to establish mess rea

The government next argues that it must ask Risen how

he received the classified information because the

government needs to ensure that it establishes the proper

mens rea under ia U.S.C. 8 793(d), which provides thati

Whoever, lawfully having possession of, access to,control over, or being entrusted with anydocument, writing, code book, signal book, sketch,photograph, photographic negative, blueprint,plan, map, model, instrument, appliance, or noterelating to the national defense, or informationrelating to the national defense which informationthe possessor has reason to believe could be usedto the injury of the Onited states ox to che

'Risen's counsel cannot fully argue this point because theinformation about ••• testimony is in a classified filing towhich Risen's counsel does not have access.

28

iri'u


..

~.

, j,' , . "1",

Tbe ~VernmDl1t bas not. preJented evan a ""'o~a poIsib11J:cy

that ~yon. other than Sterling could be charged ~itb

41sclosing this inform~tion, Tbore~., ~e gove~nment ,

fail. to uatiafy the 8.~0b4 and third p%Ong8 o£ tho LakouoDQ

te'st.

3. " .. 4 'eQ •• eablish .8~8 rea

Tbe gaverment next arg\)ea that it must uk Hieen bOW

he Teceivod the cla.siflea 1n£ormat1~n beca~s6 the

gov~t nocds to ensure th&t 1t uDtablishea the propor

men. 1;'tja unde: 18' U.S.C. I 193-(d) ,. which 'provide" t.batJ

WhOISVe:, la.wt\llay bav1ng poeseB81on of f access to, "9nt1:'Ol ova!:, O~ be:Lng" entrusted w1~h any doCNJIeat, wrl.t:iDg', code book, signal bodt, sketch. photograph; pl1ot.ograpbio nept1ve, blueprl,llt, plan. map, model. 1uatrumant, appl~aDCe, or note r8latin~ to the national defense, or 1ntQrm&eion relat~ng to ~e nation&l ~8fGUae whioh information the pos8e8'o~ baa reason to believe could be used ~o the inju~y of the Qn1ted States oz to the

1ll1sen' a counsel cannet ful].y U9'1e t.lU.u point bedaUB. I:he tnform.tion abou~ _ te,c:tnIot1Y is in • olaDllif'ied fi1.1ng t:o whiCh Risen'a counsel doee not have access.

28

TJMSCff^"advantage of any foreign nation, willfullycommunicatee, delivers•, transmits . -. . the sameto any person not entitled to receive it . . .Is}hall be fined under this title or imprisonednot mors than ten years, or both,

specifically, the government argues that if Risen's

source(s) disclosed the classified information orally, the

government would have to establish that the disclosure was

willful and that the defendant had reason to believe that

the disclosure could barm the United States i if the

disclosure to Risen Involved providing classified documents,

the government would only have to prove willfulness.

£££ Wew York Times Co. v. Dnlted Statee. 403 O.S, 713, 738

n.9 (1971) (White/ J., concurring) (concluding that

prosecution for disclosure of classified documents does not

require a demonstration of intent to harm the government) .

The government contends that without Risen'a testimony about

the form of the disclosure, it will not know which mens area

requirement applies. In his Reply Brief, Risen does not

challenge the government's statutory interpretation.

The government's argument rails beeause it can satisfy

the heightened requirement for oral disclosure, making

Rieen's testimony about the form of disclosure unnecessary.

T)v. government already has more than enough evidence to

establish probable cause that Sterling bad reason to believe

that disclosure could harm the united Statee. specifically,

29


.. ... ".. ..

advantag8 of any foreign nation, w111t~lly oommuni~at8s,·d~11vers; transmits, ; • the same to any peraGn not entitled tb reaet~. it • . . (B) hall be t~4 under ~8 title or 1mprtponed

'ACt: ""ore t:haJl t·.a. yeaS's, o~ bOth.

speeifically, the 9'Q'I'8~ 1I.rgue8 tba.t; it Ri .. n's

Bouree(s) disclosed the elas81f1ed information orally, the

90vernmant ~ould have to eatabliab tbat the d1sclo8u~ was

willful and that tne dettndant bad realOD to believe that

the d1aclos~~ coult;l bani &:.he ~ite4 It_tel J i·f the

dieoloaura to Ri.aa involved providtng ol •• sified documentsl

the. government \90\11<1 only haw to prOve w:l.l1.tul"e.ss.

1Ia New Yor5 T~ 00. X, Pnltcd St.t6l, 403 ~.S, 713, 118

n.' (1'71) (White, J., CODcurr~n~' (co~ctu~ing that

prosec:uti(M for d.1s'oloBW:e of olaa.i~104 dO'cument8 does nOC

~1~e • dsmQn.~a~ion: of in~en~ co ~ ~8 government) .

'l'he. govern_nt -contence tllat without; ~ieen' s testimonY about:

the Ion. of the d.iscloaure. 'it will. nat. knOw which mona rei' requiTement applies. In his Reply D~lef, Risen does not

challenge the go~.ram.ftt's statutory interpratation.

The governnlant:' a argument fails beca.use it can satisfy

th~ heightened requirement for oral disclosure, makLng

Risen'. te8ti~ony abou~ the form of disclosure unnoces8ar.y.

"n,.-. government already has more tnan enousb evidence to

establish probable QBWJe that Ster1.1ng bad rttlUlOn to beJ.i.VII

~hat: cUsclQElure could bum tlle uni~ st.-t.ell. specifically"

29

'I'ft.6~ ~c.~ ....

che government recovered from Sterling's computer a letter,

dated March 19, 2004, addressed to "Jim." In that letter,

the author expressed great animosity towards the CIA, even

implying that the CIA was involved with the death of a

federal judge. The government actually claims that the

letter demonstrates sterling's "deep-seated hatred and anger

cowards che CIA." opp. at 36. Because the government

already has evidence that sterling wanted to harm the CIA,

it has sufficient evidence to establish probable cause that

Sterling knew disclosure could injure the United states.

It also is inconceivable that Risen'b source did not

know that disclosure could harm United States interests.

Throughout ite Opposition Brief and the classified Bruce

Declaration, the government adamantly alleges that the

disclosure of this information harmed Ohitcd Statee security

interests. Nowhere in its filings does Che government

suggest that it even considered the possibility that Risen

obtained the information from a sourceU) who did not know

that the disclosure could harm the nation, Because the

government does not have a compelling interest in the

information, the government has failed to satisfy the third

prong of the uaRoucha test.

4. Need to authenticate Chapter 9

Lastly, the government argues that Risen's testimony ±6

id


,

~ the govemment:. recovered trOl'l'l sterling'" oomputer a letter,

date4 March 19, ~004, a4dresaed to -Jim.- 10 ~at letter,

the author expressed great anill\08.1ty towarie the CIA, even

implying that tile CIA _a tnvol'led tl1-th the de~b of a

federal judge I ':he govertlmemt. actually ela111. that the

lette~ demon8t~ates 6te~11ns'a -deep-Beatld bae~ea and &nger

COtfU4s tbe CIA. -" Opp. at: :. 6 • 8eoau.8 th8 govornment

a,lnaCly has IvLde1sQe that: S'te:ll'll9 wanted to ham eM C~,

le haa 8uftidie~t evidence to establish prcbable ea~. tna~

Sterling knew disclolU%e could inju~e tbe un1ted states.

It al80 18 Lnconeeivabte that R~sen's sourde did not

kna. that di8aloBU~ could ~rm United Statea 1n~8re.ta.

Tbroughout ica Op,poslt1on Br1ef and the clasaifie4 sruce

~l;Zlarat.ion, t.he govertUften~ a,damantly ,alleges that tne

Qisclosure of this information harmed on1tcO Sta~eB eecurity

lnt'ereet8. e:lowhez=e in ita U.U.nga does the government

auggest that it .vell eonsj.dered t.be pOlleibiU.ty tna.t. Risen

obtatned t~ informatio~ f~om a aourcelw) who did not kQQw

that the d1aclollure couleS 1\&1:'11\ the f'lation. Beca\.lSe the

go~~nmene dOeS not nave a compelling 1nte~a8t in the

informatton, th~ gOV1%Unn'~t be8 tailed to sattafy ~. thircJ

rr~ng of tbe uaaoucbA toat.

4. Need to autbent.lgat:e OUtptur ,

r~Btly, the governMent argues that R1Ben'S ~eBtimQny ~s

necessary to authenticate and admit the contents of Chapter

9 and the March 2, 2002 Hew YQrfr Times article. However,

this request also fails the Beeond and third prongs of the

LaRouche test,

Risen has already authenticated the contents of chapter

9 in a signed 2008 declaration, in which na discusses, in

depth, hiareporting of Chapter 9 and his decision to

publish the information. See, e.g.,, 2008 Risen Afif. at 137<*I actually learned che information about Operation Merlinthat was ultimately published in Chapter 9 of &%M* ot flar

in 2003, but I held Che story tcr three years before

publishing it,").

Risen has also authenticated the accuracy of his March2, 3002 W«w voi* Times article. In asigned affidavit,

Risen wrote?

As apreliminary matter, X""^J^JSE fstandgovernment also now intends to »8* ^^J*^*by the content of an article I published, in Marcn2002T titled '*ired by C.l«*., »* «*^?^*£fcielaPracticed Bias.' Ido, the facts in that «r£cleare true, to the best of my knowledge, and 1 standby what x wrote.

Affidavit of Jama* Risen, dated June 3, 20ia, at 1 10.Moreover, the authentication, hearsay, and best

evidence rules of the Federal Rules of Evidence do not applyto grand jury proceedings. flee, a.B.,. ITnHoft 3W'« V>,SOanjfce, 414 G.o. 338, 344-4S (1974) (-The grand jury's

31


..

~",:" . . to. & ••

neeeBsary to authenticate ~ admit; tbe contents of Chapte1:

!i' an" tha Macoh 2. '002 "\It toE" riMS article. However,

this request also ta~l~ the aeeortd and thi%d prongs of the

"aBrrughc teet.

Ripen hae already authentioat~a ~be ooatenta or ~pter

9 1n a signed Z008 decla7:a.t.1-on, ~n Mbieh na d.tICUS8e1J, in

depth, his T~~~~ng of Chapter , and bis 4eci8ion ~o

pub 1 ish tJ\e intornt.ion. .!oe t e . Sf- , 2006 .i8en Aft. a.t. , 11

(~l actually learned tbe info~at.ion about operation Merlin

tba~ was uLti~ately published in Ohapuer 9 of §tA,. of !a[

in aoo], ~ut ~ beld tbe 8~O~ tor three years belore

publ.ieb1ng it •. II ).

~Ben has also authenticated the accuracy o~ h1a March

2, a002 New tgrk TWS. artiole. In" Bigne~ affidaVit,

'Risen wrotElt

As a preliminary matt.er,· 3'. unde"8taJld that the Oovernm.nt 'al,o now intends to aale whe~beX' I atancS by me content of an utiole 1; ~liebed. :In ~ 200.2 , titled '1':l.2:ed by C. I.A., l1e .,aye ~sencf . h;u::tioed. a!~a·.' I ·<10. ''l')le f&CIt8 1,,, ~hat a"t:1cla are true, to the b'elft of my Jcslowledg .... Qd. 1 suNS by What "I. wrote.

Affid.vi.t of; Janie. Risen, dated. JUfJ9 3, 2010, .. t 1 '10.

Moreover, the authentication, hea~8ay, and best

eVidence rules of c~e Fed~~ Rulas ot ~idence do not apply

eo grand jury proceedings. ".' Q. B \of UnitotO ItAt" Y·

'~illi'nm, 41. '0.6. )38, 344-45 (1.914) ('\liThe grand jury's

3.1

sources of information are widely drawn, and the validity of

an indictment is not affeeted by the character of the

evidence considered, Thus, an indictment valid on its face

1b not subject to challenge on the ground that the grand

jury acted on the basis of inadequate or incompetent

evidence!.]")? In re Grand Jury Subpoena (T-1121 597 P.3d

189, 196 (4th Cir. 2010) (a[C]OUrts for generations have

recognized that a grand jury indictment need not be based on

evidence conforming to che formal requirements of a

trial."). Although the government might have a plausible

argument that such authentication may be necessary at trial,

it cannot argue that the government has a compelling

interest in authenticating chapter 9 during grand jury

proceedings. Because authentication would not aid the grand

jury's probable cause evaluation, this justification tails

the second and third prongs of the fraftouche test, both

because there is not a compelling interest to authenticate

and because the information sought is already available in

Risen's affidavits.

III. conclusion

The grand jury's investigation involves a sensitive

rational security issue, which both sides argue should be

taken into consideration in applying the LaRpuche balancing

test. The government correctly stresses that few interests

32


Sources of information are Iddely ctz-tl~ and the validity of

an !bdictment 18 not aftact6d by tb_ oha:acter of the

Bvidem<:e ooJUlidered. ThUI, an .lncUctntent valid on its faae

is not 'lUbjett. to che.ll.anp on I:.tw ground tbat the gl'iJnd

j\ll:')' acted on the baa'! .. of inadsqiJ,ate or iDoompeteJIt:

eVidence [.] jt) 1 In xe Ilrapd ala"Y bbJxleDa ('1'-1.2). 597 r. Jet

18', 196 (4th C1r. 2010) (·[Clou~eB for generat10ne have

%1IC:ognized that a Vr:a.tuf 1ury 1nd1c:tm.nc Mea BOt bD btL.eel on

e.idence conlorming to the t~al ~.~irement8 o~ a

~r1al."). Although the go.e~nt might ha~. « plausible

a~Q1lt that. lIucll aut.hentlClaeiotl may be' necessary at criDl,

it cannot a~gue that the government has & compelling

interest in autnenticat1ng Chapter 9 aUring 9~anQ jury

p~gee41nga. Because auttuant.iaat.ion would not .id the grand

jury' B probable CAus.e evaluati'Of1J tbis jU8t1t.i~at1on fa:tl1iJ

che 5econd and th~ra prOP~ of th~ LaRQughe test, botb

because thare ib not a compel11ng interest to authenticace

and because the info~eion sought is al~ady available in

Risen's affidavits.

nl. conCll.uaion

The gran4 jury's ibvest1gat1~ 1~lves a Bensitive

n:tional s~curity issue, which ~otb~ides argue .shQuld be

t.ken inca consideration in applying tbD LaBpUQbA balanctng

teat. The. govet'mllsnt correctly stresses that t." inte-r~.,t1i

32

are as compelling ae the government's interests in

protecting national security. *It is 'obvious and

unarguable' that no governmental interest is more compelling

than che security of the Nation," Haiq v. Aaaa, 453 U.S.

280, 307 (1961), The government is investigating the alleged

diroloaure of highly classified information about!

Risen also relies on the significance oE the national

security element to emphasize tha value of the leaked

information which,' if true, points to a mishandled project

by the CIA about which the public needs to be aware.

Reporting about national security often serves a significant

public interest, and investigative reporting about national

security often requires confidentiality agreements, fies

Affidavit of Scott Armstrong, dated February 16, 2008, at 1

14 ("The highest ranking government officials may prefer to

be confidential sources to che news media in order to

communicate candidly their differences of opinion or fact

with othere in the same department or administration to an

oversight committee, Such confidential source relationships

are often the only manner through which the mixture of

sensitive and non-sensitive national security information

can be integrated and conveyed to the publici")

33


J I,

~ . . ' -, .' . ) ." .. '

are a.. ecnatlol11ng· •• the g'CMSrramoat' II ~ter:e.t. in

protecting Muoaal ".curit~. -It is 'obvious and

WlUguable' tMt no gov=-atal 1nt~ 1 • .we cocapell:1ng

than e)'le aecuz;ieyof tPe llati.l:n1.· Rata v, JaM, •• 51 O.S.

280, 307 (~'81), The gov~nt ill ~»veDtifa~ing the alleged

Risdb alBQ reliea on the Significance of the national

8ecu~ity element to empb~81~e the value of the lea~a~

lnfQrms.t1on which;' if true. poi1\~ t.O if. n\i.ahandlea projeQt

by tho CI~ about which ~8 public needS to be awa~8.

Reporting about national 8ecu~ity often eervsa a siSpificant

public interest, and 1nv8st1get1ve ~eport1ng about national

eecllr..Lty often ,;'e~iree confident;l.al:lty agreements. .a=

Affidavit· ot Scott ArmstroDg, O&~ 7ebrU&~ 16, 2008, at ,

~. (~The higheut ranking governmebt officials may prefer to

~ cGnfideneial. soureea to ch. newtf media 1n o'll'd:u to

communicate caadidly th.L~ d1tferencea ot opinion or 'f~ct

With others ic the sa.me department or Bainiatral:ioc to an

over~ig~t oomm1ttee. SUoh confidential source xB~ationphipa

axe often the only manner througb whioh the mixture of

sens1tive and non-ueJl,e..1tive naeional sec:u.rit.y informat.ion

can be lnteg~ated and eoftvayed to ~be ~ltclw)

33

Both parties present compelling arguments, yeC they are

unable to cite to any Fourth Circuit precedent that carves

out a nacional security exception to tha iianoucha balancing

test. Moreover, the subpoena at issue is a grand jury

subpoena, not a trial subpoena, as such, the government's

compelling interest at this stage is merely to establish

probable causa that Sterling or any other suspect disolossd

classified information, i»A grand jury proceeding is not an

adversary hearing in which the guilt or innocence of the

accused is adjudicated. Rather, it ie an ex parte

investigation to determine whether a crime has been

committed and whether criminal proceedings should be

instituted against any person." united acafrfff v- Calandra.

414 XI,8. 338, 343-44 (1974).

Aa discussed above, the circumstantial evidence already

before the grand jury - including the testimony of bbbssbbsbbI

who confirmed Sterling as Risert'a source, the telephone and

e-mail records, and Sterling's discussion with the senate

staffers - is more than enough evidence to establish

probable cause to indict Sterling and the government has

essentially admitted that fact. To require a reporter to

violate his confidentiality agreement with hie source under

these facts would essentially destroy the reporter's

privilege. Were Sterling to be indicted and a trial

34


-j

,.. "tr, "t "''11'" '" .• \IIIt , , I

Eoen ~~1.elJ pnuene c.Y01IpS1Ung at."'gWllents. yet they are

unable to c:1.t:. ~o .my Pourth Circuit p~"c::adent t'hat carv ..

out a national .ecu~1ty exception to the LQRpuqhQ balancing

test. Moreov&r, the IUbpoena. at issue is .. grand jury

B\1bpoul\l., not a trta! subpoena. As 8uab, the gov~nt' JJ

compel11n9 incerest ~t ~s ·.tav- ie meze~y to •• tab11sb

prcbilble. Q~P. tbat Steirling OJ: any o~eZ' INlpec:t 41.aloaecJ

clasB1fled information. ~A graad ju~ p~De.d1n9 i~ not an

ac1ver8a~y hearing 111 which the guilt or innocence ot tbe

accused 18 adjudicated. R~the~t it 18 an ex Parte

inV.8t1g~t1on to determine whether a crime ha$ been

commiteed and Whether criminal procce~inge anould be

iastituted again8t any person.- unitod Stat" v, calandrl,

tli U,S. 338, 343-44 (1974).

Ae CUscu88e4 a'bov., the cil"cUftlat.an'Clal evld.n.c~ already

beeore ttU! gya.nd jUry - incluc.\i~ the t~sti(llony 0:_

who ccnfimed Ste:-llng -as Risen' 8 80U%:QG, the t:81..~o:ne ant!'

.~mail tecords, ~ 8te~ling'B d18~U88icn Witb tbe senate

Buffns - iA 1CIO're than enough evidence to e8taDli&h

probable cause to ind~et Sta~11ng aDa the government haD

essentially admitted that fact. To require a repoJ:~8X' to

violate his confiden~ia11ty agreement wlth his source unde~

the •• facts would essentially destroy -the repo~terfs

privilege. Were stczoling t.o be ind1.ate4 and a uial.

subpoena to be issued to Rieen, the analysis might well

change, because at trial the government would have the much

higher burden of proving sterling's guilt beyond a

reasonable doubt, In that context, the government might

well satisfy the LaRouehe balancing test, It has not

satisfied that balancing test in the grand jury context.

For these reasons, Oames Risen'b Motion to Guash the

grand jury subpoena has been granted by an order issued on

November 24, 2010.

The Clerk is directed to forward a copy of this

Memorandum Opinion to the Court Security Officer, who will

provide a copy to the government, arrange for classification

review, and provide a redacted copy to movant's counsel.

Entered this Jg. day of November, 2010

Alexandria, Virginia

35

Leonie M. Betoken*United States DistrictJudge

V«'i"..


~C'f{!!'.'" subpoena to be 1sBUed to IU.sen, ~be .ll&lYlia migbt well.

c::ballge. b'eCauae at trial the gov.emuftenl:. woul.d Mve the M\1Ol1

higher bu~ of pxoving Sterl:lng-' B guilt beyOnd a

reasonable doubt I 111 tllat eontmtt. the govermaent mig'tlt

well ua~1&fy tbe kkRqugne bal.ncin9 topt. tt has not

aa.t1sfie4 tha.t balDDcing teet in the grand jury oontoxt.

Por theBe reasonu, James ~aBn'B MOtion to ~8h the

grand jury subpoena baa beeD granted bV an Order issued. on

NOV.mbar 24, 2010.

The Clerlc ia dtreceecJ to foX'WU'Q a copy of this

Memcrand~m o,inion ~ ~h8· Court S.~ity Oftiaer, who will

p~ovids a copy to the government, axrange for ~16sBificat1op

review, ~nd provide a recia(fcad copy ~o mOVBQt-/e ~ouue'l.

~ 2ntered this ~ day of November I 3010

A1GxanQ~ia, Virginia

. ~. Leoma N. Dr Umitod BtI&oI DiatrIDt l.adp

35

--

memorandum opinion granting motion to quash subpoena ... · is rinan'e motion to quash agrand...

Documents