SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 73
August 1, 2011

Secrecy News Blog: http://www.fas.org/blog/secrecy/

REPORTER RISEN WILL NOT HAVE TO IDENTIFY SOURCE IN LEAK TRIAL

A judge ruled on Friday that New York Times reporter James Risen will not have to testify about the identity of a source in the upcoming trial of former CIA officer Jeffrey Sterling, who is accused of leaking classified information to Risen.

The July 29 court order said that Risen must testify only about certain non-privileged information. Specifically, Mr. Risen was directed to appear at trial in order to confirm: "(1) that Risen wrote a particular newspaper article or chapter of a book; (2) that a particular newspaper article or book chapter that Risen wrote is accurate; (3) that statements referred to in Risen's newspaper article or book chapter as being made by an unnamed source were in fact made to Risen by an unnamed source; and (4) that statements referred to in Risen's newspaper article or book chapter as being made by an identified source were in fact made by that identified source."

The court order by Judge Leonie M. Brinkema was framed as a "partial grant" of the government's motion to subpoena Mr. Risen. But it was actually a defeat for the prosecution and an unambiguous victory for Mr. Risen. This is clear from the fact that the court's very language describing the required scope of Mr. Risen's testimony was taken -- practically word for word -- from the June 21 motion by Risen's attorneys to quash the subpoena, in which they set forth the limits of his willingness to testify (pp. 45-46).

Beyond the four enumerated categories Risen voluntarily agreed to discuss, "I cannot testify as to the Government's other questions," Mr. Risen wrote in his own affidavit (paragraph 60).

"To answer the Government's other questions would violate my agreement to maintain in confidence not just the name(s) of my source(s), but information that would tend to reveal the identity/ies of my source(s). If I provide the testimony that has been requested of me, including the 'what,' 'how,' 'when,' and 'where' of acquiring each piece of confidential information, doing so will reveal my confidential source(s), regardless of whether I directly provide any name(s)," Mr. Risen wrote. "Accordingly, I cannot comply with the subpoena."

Now the court said that he will not have to.

James Risen praised the court decision in a comment to Glenn Greenwald of Salon.com: "This is an important victory for the First Amendment, and for the freedom of the press in the United States. Some people don't seem to understand the connection between the ability of journalists to protect their confidential sources and a free press. But if whistleblowers in government, in corporations, and elsewhere in society can be hounded and persecuted, and if the Justice Department is able to use its power to turn reporters into informants, then investigative journalism in America will surely wither and die. The First Amendment will have lost its meaning."

A memorandum opinion explaining the court order is still undergoing declassification review.

MAIL FRAUD STATUTE SWEEPS BROADLY

One of the peculiar features of the prosecution of suspected leaker Jeffrey Sterling is that he is charged with a seemingly unlikely count of "mail fraud."

The government's contention (in Count Eight of the indictment) is that by leaking information to author James Risen, whose books containing that information were later sent by mail to bookstores, Mr. Sterling engaged in mail fraud.

Mail fraud is no doubt a bad thing to do. But to a surprising extent the opposite is also true. The law is so broadly written that many bad things that a person may do could turn out to be mail fraud.

"The mail and wire fraud statutes essentially outlaw dishonesty," according to a new survey of the subject prepared by the Congressional Research Service which describes the statutes' astonishing breadth. (The CRS report does not address the Sterling case.)

"A defendant need not personally have mailed or wired a communication," the CRS report said; "it is enough that he 'caused' a mailing or transmission of a wire communication in the sense that the mailing or transmission was the reasonable foreseeable consequence of his intended scheme."

See "Mail and Wire Fraud: A Brief Overview of Federal Criminal Law," July 21, 2011:

An abridged version of the same report is here:

"The mail fraud statute was first enacted in the late nineteenth century in order to prevent city slickers from using the mail to cheat guileless country folks," the CRS report really says.

WIRELESS EVOLUTION AND CHALLENGES TO LAW ENFORCEMENT

"The challenges facing LE [law enforcement] increase with the introduction of each new wireless device," according to a newly disclosed FBI publication which traces the development of wireless communications.

The publication, entitled "Wireless Evolution," was prepared by the FBI's Operational Technology Division and published in Emerging Technologies Research Bulletin in March 2011. A copy was obtained by the Federation of American Scientists under the Freedom of Information Act.

Originally marked "Law Enforcement Sensitive," it was redacted for release under FOIA and much of the discussion of the implications of new technologies for law enforcement was withheld. But the remainder provides a remarkably comprehensive (though jargon intensive) account of new communications technologies of interest to law enforcement.

A reader who saw the original, unredacted report said "It does as good a job as I have seen of laying out, in great detail, the evolution of mobile communications from hardware, application, and network perspectives as might be of implication to investigations and analysis. It also offers good projections on future trends."

Portions of the report were described in Wired Threat Level on July 28.

A new report from the Congressional Research Service addresses related law enforcement policy issues.

"The operational realities of 21st century crime and policing present significant challenges to U.S. policy makers," the report said. "[P]olicies directed toward countering crime in one reality will impact crime and law enforcement countermeasures in other realities."

See "The Interplay of Borders, Turf, Cyberspace, and Jurisdiction: Issues Confronting U.S. Law Enforcement," July 19, 2011:

Congress has instructed CRS not to make its publications directly available to the public. A copy of the new report was obtained by Secrecy News.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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