SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 14
February 15, 2012

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

REPORTER'S PRIVILEGE AT ISSUE IN STERLING LEAK CASE

The question of whether a reporter is entitled to protect confidential sources has emerged as a central issue in the pending pre-trial appeal in prosecution of Jeffrey Sterling, the former CIA officer who is accused of leaking classified information to New York Times reporter James Risen.

"There is no 'reporter's privilege' applicable to criminal prosecutions brought in good faith," prosecutors told the appeals court last month. "The First Amendment creates no 'reporter's privilege' that would shield Risen from his obligation to testify at Sterling's criminal trial and identify his source." ("Testimony of Reporter Sought in Sterling Leak Case," Secrecy News, January 17).

That's not true, countered Mr. Risen's attorneys in a lengthy response filed yesterday, and the court should not rule otherwise.

"This Court should not depart from well-established precedent by being the first court of appeals ever to deny the existence of a reporter's privilege with respect to confidential source information in the criminal trial context.... Confidentiality is essential for journalists to sustain their relationships with sources and to obtain sensitive information from them. Without it, the press cannot effectively serve the public by keeping it informed."

Mr. Risen's attorneys proposed that the Court embrace a balancing test that recognizes both the benefits and risks of leaks.

"We respectfully submit that leak cases should also include a weighing of the competing interests as they manifest themselves in the case at hand -- that is, by 'weigh[ing] the public interest in compelling disclosure [of a source], measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value'."

"Put simply, incorporating this public interest analysis is the most direct way to protect journalism based on leaks that cause more good than harm. It also provides a basis to force the privilege to yield for leaks that cause more harm than good."

"Applying this approach to the facts of this case, it is clear that the newsworthiness of the information contained in Chapter 9 of [Mr. Risen's book] State of War outweighs any alleged harm that was caused by its publication," Mr. Risen's attorneys wrote.

A response to the government's appeal was also filed yesterday by Mr. Sterling, but it has not yet been publicly released.

The case has been tentatively scheduled for oral argument during the May 15-18 session of the Fourth Circuit Court of Appeals.

PENTAGON BASIC RESEARCH SAID TO NEED "MORE TRANSPARENCY"

The Department of Defense basic research program has many strengths as well as some serious weaknesses, according to a new report from the Defense Science Board (DSB), but it needs to open up and to improve its information management practices.

"As is true for most programs in the DoD,... less bureaucracy and more transparency would be welcome improvements," the DSB study said.

Current DoD information practices are not even responsive to internal agency needs, let alone requests from outsiders, the DSB found.

"A significant handicap for conducting the [DSB] study was the difficulty of getting data on the DOD basic research program. What should have been easily retrievable data required huge time-consuming, labor-intensive efforts to collect and assemble due to the lack of a modern management information system that would enable answering questions posed by DOD leadership."

"It is difficult to have management without management information," the DSB report said. See Report of the DSB Task Force on Basic Research, January 2012 (large pdf):

FY2012 DEFENSE APPROPRIATIONS, AND MORE FROM CRS

New and updated reports from the Congressional Research Service that Congress has not made publicly available include these.

Defense: FY2012 Budget Request, Authorization and Appropriations, February 13, 2012:

Guam: U.S. Defense Deployments, February 13, 2012:

Conventional Prompt Global Strike and Long-Range Ballistic Missiles: Background and Issues, February 13, 2012:

Keeping America's Pipelines Safe and Secure: Key Issues for Congress, February 13, 2012:

Discretionary Budget Authority by Subfunction: An Overview, February 14, 2012:

Federal Employees' Retirement System: Benefits and Financing, February 14, 2012:

The Role of Local Food Systems in U.S. Farm Policy, January 24, 2012:

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

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