April 12, 2008
Leak Inquiry Said to Focus on Calls With Times
By PHILIP SHENON, NY TIMES

WASHINGTON — Former government officials have recently been called before a federal grand jury and confronted with phone records documenting calls with a reporter who covers intelligence issues at The New York Times, according to people with detailed knowledge of the investigation.

A former official who was called before the grand jury in Alexandria, Va., said that he was shown extensive phone records that documented the date and duration of conversations with James Risen, a Times reporter in Washington, and that prosecutors were trying to identify Mr. Risen’s sources. Mr. Risen is fighting a grand jury subpoena for testimony about his sources for a 2006 book on the Central Intelligence Agency.

Justice Department officials have confirmed that prosecutors are trying to identify Mr. Risen’s sources for the book, “State of War,” and for articles he wrote for The Times about the nation’s spy agencies, to determine if his sources violated laws on the sharing of classified information.

But spokesmen for the department would not comment on details of the grand jury investigation, which is being conducted out of the federal courthouse in Alexandria.

The grand jury witness, who spoke on condition of anonymity because he did not want to draw new attention to himself, and others with knowledge of the investigation say it is unclear whose phone records were obtained by the Justice Department — if they were records of calls made from Mr. Risen’s phones or from the phones of officials who may have talked to him. The Times has not been subpoenaed for Mr. Risen’s office phone records, although there are other ways that the department could obtain them, possibly by a subpoena to phone companies without any notice to the newspaper. Department guidelines give prosecutors the ability to subpoena a reporter’s phone records if they obtain approval from the attorney general’s office.

Mr. Risen shared the 2006 Pulitzer Prize for articles that exposed the National Security Agency’s program of eavesdropping without warrants, and the Justice Department’s effort to identify the sources of those articles and of his book is one of several federal leak investigations singling out reporters and their sources.

In 2005, Judith Miller, then a reporter for The Times, was jailed for nearly three months after she initially refused to identify news sources in an investigation of leaks that identified a covert C.I.A. operative.

A freelance reporter in California, Josh Wolf, was freed from a federal prison last April after 226 days; he was imprisoned after refusing to testify before a grand jury and turn over tapes that he had made of an anarchist rally that turned violent in San Francisco.

The Justice Department is trying to block efforts in Congress to create a federal law to shield reporters from identifying their sources; a shield law exists in many states. The department has argued that a federal shield law would restrict its ability to identify government officials and others who leak classified information to reporters that might damage national security.

Joel Kurtzberg, a lawyer in New York who is representing Mr. Risen on behalf of both The Times and his book publisher, The Free Press, said he had no comment on the investigation.

Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press, suggested that the investigation was one of several “really egregious” efforts by the Bush administration to limit press freedoms by intimidating reporters and their sources.

Ms. Dalglish said in an interview that as a result of Mr. Risen’s case and others, the committee was recommending that reporters stop using their home and office phones to communicate with sources on sensitive topics. “Do your reporting the old fashioned way — meet your sources on a park bench,” she said.

In January, Mr. Risen received a subpoena that, his lawyers said, appeared intended to force him to reveal his sources for a specific chapter in “State of War” that described efforts by the C.I.A. to infiltrate Iran’s nuclear program. None of the material from that chapter appeared in The Times. The book also expanded on Mr. Risen’s reporting on the domestic eavesdropping program.

February 1, 2008
Times Reporter Subpoenaed Over Source for Book
By PHILIP SHENON, NY TIMES

WASHINGTON — A federal grand jury has issued a subpoena to a reporter of The New York Times, apparently to try to force him to reveal his confidential sources for a 2006 book on the Central Intelligence Agency, one of the reporter’s lawyers said Thursday.

The subpoena was delivered last week to the New York law firm that is representing the reporter, James Risen, and ordered him to appear before a grand jury in Alexandria, Va., on Feb. 7.

Mr. Risen’s lawyer, David N. Kelley, who was the United States attorney in Manhattan early in the Bush administration, said in an interview that the subpoena sought the source of information for a specific chapter of the book “State of War.”

The chapter asserted that the C.I.A. had unsuccessfully tried, beginning in the Clinton administration, to infiltrate Iran’s nuclear program. None of the material in that chapter appeared in The New York Times.

“We intend to fight this subpoena, so we’ll likely be engaging in some sort of litigation,” Mr. Kelley said. “Jim has adhered to the highest traditions of journalism. He is the highest caliber of reporter that you can find, and he will keep his commitment to the confidentiality of his sources.”

Mr. Risen and a colleague at The Times, Eric Lichtblau, won the 2006 Pulitzer Prize for national reporting for their disclosure of the administration’s program of wiretapping without warrants; Mr. Risen’s book expanded on their reporting about the domestic eavesdropping effort.

Mr. Risen, who is based in Washington and specializes in intelligence issues, is the latest of several reporters to face subpoenas in leak investigations overseen by the Justice Department.

A former reporter at The Times, Judith Miller, was jailed for 85 days in 2005 after initially refusing to identify a confidential source to a grand jury that was investigating the leak of the name of a covert C.I.A. operative. Ms. Miller testified after being granted a waiver by her source, I. Lewis Libby Jr., who was Vice President Dick Cheney’s former chief of staff.

Martha K. Levin, executive vice president and publisher of Free Press, which published Mr. Risen’s book and is a unit of Simon & Schuster Inc., said in a statement that “the American people have been well served by Mr. Risen’s reporting.” Ms. Levin’s statement also said that “the ability to publish confidentially sourced information about our government’s practices and policies is one of the bedrock principles of a free and open society.”

A spokeswoman for The Times, Catherine J. Mathis, said the paper “strongly supports Mr. Risen and deplores what seems to be a growing trend of government leak investigations focusing on journalists, particularly in the national security area.”

Ms. Mathis would not say why the material about the C.I.A. program involving Iran appeared in Mr. Risen’s book but not in pages of The Times. “We don’t discuss matters not published in The Times,” she said.

The Justice Department would not comment on the work of the grand jury that issued the subpoena to Mr. Risen. “The department does not comment on pending investigations,” said Peter Carr, a spokesman.

Strategic Intent

Studies in Intelligence

CIA Library

Kids Page

Just One Minute

Mentoring programs at the CIA


Federal reporter's shield law proposed
LINK

* Sen. Christopher Dodd (D-Conn.) introduced a bill to protect reporters from revealing their sources in federal courts.

Nov. 22, 2004 -- Spurred by the recent spate of reporter subpoenas -- including last week's criminal contempt conviction of Providence, R.I., investigative journalist Jim Taricani -- Sen. Christopher Dodd (D-Conn.) introduced a bill Friday that would bar federal courts from compelling journalists to reveal their sources.

"This legislation is fundamentally about good government and the free and unfettered flow of information to the public," Dodd said in a statement after introducing the Free Speech Protection Act of 2004.

"The American people deserve access to a wide array of views so that they can make informed decisions and effectively participate in matters of public concern. When the public's right to know is threatened, and when the rights of free speech and free press are at risk, all of the other liberties we hold dear are endangered. The legislation that I am introducing today will protect these rights, and ensure that the government remains open and accountable to its citizens," he said.

The bill would provide an absolute privilege from disclosing sources whether they are promised confidentiality or not. The bill would provide a limited or qualified privilege to withhold other information except under certain circumstances.

Thirty-one states and the District of Columbia have shield laws that protect journalists from revealing their sources in state courts, but no such federal shield law exists. There is significant confusion among the federal courts as to what constitutional privilege exists following the U.S. Supreme Court's 1972 decision in Branzburg v. Hayes that no privilege exists to withhold confidential sources from a grand jury subpoena.

Dodd's bill will not be acted on before Congress adjourns this fall, and the bill will have to be introduced again when a Congress reconvenes in January. Even then, Dodd admits the bill will be tough to pass due to resistance by lawmakers to restrict prosecutors during the "war on terror" and declining public opinion of the news media, he told the New Haven Register .

Similar attempts in the 1970s and 1980s to pass a federal shield law failed because of a lack of agreement among journalists as to what the laws should include. However, following the recent subpoenas, many news organizations and journalism groups have renewed calls for a federal shield law.

(S. 3020) -- GP

Senator leads drive for federal media shield law
Zachary Coile, Chronicle Washington Bureau, Thursday, September 21, 2006
LINK

(09-21) 04:00 PDT Washington -- An influential Republican senator said Wednesday that it's time for Congress to approve a law that would protect journalists from having to choose between jail time and revealing their confidential sources in court cases.

Sen. Arlen Specter, R-Pa., chastised a top Justice Department official who testified that a proposed bill to shield journalists from revealing their sources was a "solution in search of a problem."

"I disagree with you," Specter, chairman of the Senate Judiciary Committee and a former prosecutor, told Deputy Attorney General Paul McNulty. "My view is that it's something that must be addressed legislatively."

Despite opposition by the Bush administration, Specter said he has asked Republican leaders for a vote in the Senate this year on the proposed federal shield law he is co-sponsoring, most likely during a planned lame-duck session after the Nov. 7 elections. The House is moving more slowly on its version of a media shield law.

The debate before Specter's committee came a day before federal prosecutors are scheduled to ask U.S. District Judge Jeffrey White in San Francisco to jail Chronicle reporters Lance Williams and Mark Fainaru-Wada for 18 months for refusing to name the sources of grand jury testimony the reporters used in their stories on illegal steroid use in professional sports.

Ted Olson, the former solicitor general for the Bush administration, testified Wednesday that the case of the two Chronicle reporters was the latest illustration of the need for a federal shield law that would end the spectacle of journalists going to jail to protect their sources.

"One of the most vital functions of our free and independent press is to function as a watchdog, working to uncover stories that would otherwise go untold," Olson said at the Senate Judiciary Committee hearing.

"Journalists in pursuit of such stories often must obtain information from individuals who, for fear of retribution or retaliation, are unwilling to be publicly identified," he said.

Thirty-one states and the District of Columbia have media shield laws on the books, and courts in another 18 states have recognized a journalist's privilege to protect sources. But no federal law shields reporters from having to divulge sources or turn over their notes in cases that involve federal authorities.

California has a media shield law, but it does not protect Williams and Fainaru-Wada because they reported on federal grand jury testimony and their case is being heard in U.S. District Court, not California state court.

Specter's hearing was the fourth so far to push for the proposed federal shield law, which was introduced last year by Sen. Richard Lugar, R-Ind., and Sen. Chris Dodd, D-Conn.

The measure offers reporters a "qualified privilege," requiring prosecutors to exhaust all other avenues before asking journalists to reveal confidential sources. The bill would ask federal judges to decide whether forcing the disclosure of a source's identity outweighed "the public's interest in newsgathering and maintaining a free flow of information."

Specter joined as a sponsor in May after lawmakers modified the bill to address some of the concerns of critics. Under the changes, journalists would be required to testify if they were eyewitnesses to a crime or if the information was critical to preventing death or bodily harm, an act of terrorism or significant harm to national security.

But the changes have not mollified the Bush administration. McNulty, a top Justice Department official, testified Wednesday that the bill would impose "crippling burdens" on federal law enforcement in national security cases.

Under the proposal, "the burden is on the government ... of proving significant harm," McNulty said. "We're put into a very difficult situation."

McNulty said the bill would force federal judges to make tricky decisions about the national security implications of a leak to a journalist, which the administration believes should instead be vested in the executive branch.

But another witness, Bruce Baird, a former assistant U.S. attorney in Manhattan, argued that federal judges are asked to made tough choices and balance competing interests all the time. Baird, who supports the bill, said prosecutors have become too reliant on subpoenaing reporters to get information.

"There are many investigative techniques," he said. "Subpoenaing reporters for their sources is not the only way to prosecute a case."

Olson, who served for seven years in the Justice Department under Bush and former President Ronald Reagan, said he believes the bill would not hamper federal law enforcement efforts or threaten national security.

"Naturally, the Department of Justice does not want its judgments second-guessed by judges," Olson said. "But we do not recoil from judicial oversight when it comes to attorney-client or physician-patient privilege, or search warrants or FISA (eavesdropping) warrants. And there is no reason we should reject it when it comes to journalist-source communications."

Another witness, Victor Schwartz, a former dean of the University of Cincinnati law school who represents the National Association of Manufacturers, expressed the business community's concern that the bill could undermine efforts by corporations to take legal action against individuals who leak trade secrets or other proprietary information to the news media.

"People who are breaking the law shouldn't be protected by simply handing it over to a reporter," Schwartz said.

Sen. Chuck Schumer, D-N.Y., a supporter of the bill, said the measure would still allow prosecutors to go after unlawful leakers. But he also took issue with recent criticisms of leaked stories about secret CIA prisons or the administration's wiretapping program. He said that just as prosecutors have long leaked secret grand jury testimony to boost their cases, the White House also has selectively leaked classified information to the media.

"We didn't hear a peep from the government because it seemed to serve their interest," Schumer said.

E-mail Zachary Coile at zcoile@sfchronicle.com.

SAN FRANCISCO
Contempt case against BALCO reporters flawed, Chronicle tells court
Final round of written challenges to prison sentences
Bob Egelko, Chronicle Staff Writer, Thursday, January 11, 2007
LINK

The Chronicle told a federal appeals court Wednesday that contempt-of-court orders against two reporters, for refusing to disclose sources of leaked testimony about athletes and steroids, were based on a false premise -- that the leak was a serious crime requiring a grand jury investigation.

In a final round of written arguments to the Ninth U.S. Circuit Court of Appeals challenging prison sentences for the reporters and fines for the newspaper, lawyers for the parent Hearst Corp. disputed prosecutors' position that journalists never have the right to withhold evidence from a grand jury investigating a crime.

A 1972 Supreme Court ruling upholding contempt orders against reporters for refusing to disclose their sources to grand juries involved serious crimes, such as drug trafficking and plots of violence, that can be prosecuted only by grand jury indictments under the Constitution, said Jonathan Donnellan, a Hearst attorney.

By contrast, he said, the current case involves a violation of a secrecy order by U.S. District Judge Susan Illston that she could have investigated herself or referred to a special prosecutor.

Either of those options would have allowed the reporters to claim the right to protect their sources, Donnellan said, and that right shouldn't be diminished by Illston's decision to refer the leak to the Justice Department, which chose to convene a grand jury.

"First Amendment rights cannot rise or fall on the district court's discretionary choice as to where to steer an investigation," the lawyer wrote. "In cases involving violation of a protective order, at least, a rigid distinction between grand jury and other matters cannot stand."

The court has scheduled a hearing Feb. 12 on appeals by The Chronicle and reporters Mark Fainaru-Wada and Lance Williams, who were deemed in contempt in September by U.S. District Judge Jeffrey White for refusing to testify or provide documents to a grand jury investigating the leaked transcripts.

White sentenced Fainaru-Wada and Williams to up to 18 months in prison, and imposed a $1,000-a-day fine on The Chronicle, but suspended those penalties until the appeals court rules in the case.

Fainaru-Wada and Williams wrote articles in 2004 quoting closed-door testimony by Barry Bonds of the Giants, Jason Giambi of the New York Yankees, sprinter Tim Montgomery and other athletes about their use of drugs supplied by the Bay Area Laboratory Co-Operative, or BALCO.

Five defendants, including BALCO founder Victor Conte, have pleaded guilty to illegal drug distribution. A separate grand jury is investigating whether Bonds lied by denying he knowingly used steroids.

After the August 2004 article on Montgomery's testimony, Illston, who had ordered all participants in the case to keep the transcripts confidential, told the Justice Department to investigate the leak. The department impaneled a grand jury, which issued subpoenas to the reporters and The Chronicle in May.

In upholding the subpoenas, White said the 1972 Supreme Court ruling established that journalists have no special right to withhold evidence from a grand jury. He said exceptions carved out by some post-1972 rulings -- requiring those who seek reporters' testimony to show that it is essential and unavailable elsewhere -- have not involved grand jury investigations.

Lawyers for the newspaper and the reporters contend a 1996 Supreme Court ruling, allowing psychotherapists to withhold their patients' confidential statements from grand juries, requires federal judges to recognize similar rights for journalists, along the lines of shield laws enacted by California and most other states.

Reporters should be allowed to protect their sources, the attorneys argue, if the value of the news coverage outweighs any harm caused by the disclosure.

Prosecutors have told the court that the reporters acted "in furtherance of crimes" and have no constitutional right to protect the perpetrator.

E-mail Bob Egelko at begelko@sfchronicle.com.