SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 18
February 29, 2012

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

THERE IS NO REPORTER'S PRIVILEGE, LEAK PROSECUTORS INSIST

"There is no 'reporter's privilege' that shields the identity of confidential sources in good-faith criminal proceedings," prosecutors reiterated in a new pre-trial brief in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information to author and New York Times reporter James Risen. Consequently, they said, Mr. Risen should not be permitted to invoke such a privilege to shield his source.

"Risen and his amici simply do not accept that Branzburg [the 1972 Supreme Court case that appeared to preclude a reporter's privilege in criminal cases] is the law," prosecutors told the Fourth Circuit Appeals Court in their February 28 reply brief. "Instead, they largely ignore the majority opinion in that case and rely on other sources to construct a constitutional or common law privilege. Their arguments are not persuasive and should be rejected."

"Contrary to Risen's claim, the 'newsworthiness' of the information has no bearing on whether he should be required to disclose his source," prosecutors wrote. "The 'newsworthiness' of the information is irrelevant to whether Sterling committed a crime, and it is irrelevant to whether Risen, like any other citizen, must testify concerning his knowledge of that crime."

Mr. Risen's brief in support of upholding a reporter's privilege is here:

In a February 14 defense pleading that was redacted and unsealed this week, the Sterling defense team wrote that "Mr. Sterling takes no position on whether a 'reporter's privilege' exists and, if so, whether Mr. Risen would have been entitled to invoke the privilege at trial."

But the defense added that the urgency of the prosecution's demand for Mr. Risen's testimony "serves to highlight the evidentiary gaps in its case against Mr. Sterling. Indeed, the Government concedes that without Mr. Risen's testimony, it cannot even establish venue [i.e. where the alleged crime took place]."

"The Government proffers that Mr. Risen is 'the only eyewitness to the crime and the only person who could identify Sterling as the perpetrator.' This statement merely summarizes the Government's aspirations as to what Mr. Risen might say. The Court must be careful to avoid believing that there is any basis in the record for this or the many other statements or claims the Government attributes to Mr. Risen and testimony that has never been provided."

In short, the defense response said, "while Mr. Sterling takes no position on the privilege or First Amendment issues posed by this case, the record is clear that the Government is speculating about Mr. Risen's anticipated testimony in a vain attempt to fill a gaping evidentiary void that has existed throughout its investigation and attempted prosecution of its case against Mr. Sterling."

Both parties also disputed the other issues on appeal, including whether two government witnesses were properly struck by the trial court, and whether the identities of two covert witnesses should be revealed to the defense and the jury at trial, as the lower court ordered.

Oral argument before the Fourth Circuit Court of Appeals is tentatively scheduled for mid-May.

ARMY: RECOVERY OF CAPTURED JOURNALISTS POSES "CHALLENGES"

A recently updated U.S. Army doctrinal manual on recovery of U.S. military personnel who are captured by enemy forces -- which is considered "one of the highest priorities of the United States Government" -- includes a new section on the recovery of journalists who have been kidnapped or detained abroad.

"International journalists risk jail, kidnapping, or death in the course of their profession, particularly in areas of conflict," the manual observes. "The danger is not just to the journalists themselves, but also to their staffs and families. The dangers and the risk of isolation become acute in areas with persistent conflict, such as parts of Latin America and Asia. As joint and Army forces conduct global operations, they encounter members of the news media."

"While not responsible for the protection and security for any except those embedded with military units and organizations, in some situations Army forces conduct operations to recover journalists designated by U.S. authorities. Recovery of journalists provides challenges for joint and Army forces."

"Journalists often have little training in survival, evasion, resistance, and escape techniques. Even those working for large media conglomerates may have had limited training, such as briefings or informal orientations on how to avoid being a target. Their organizations may learn of their capture only when the hostage-takers issue a ransom demand. Some news organizations employ private security details, but it is common for hostage-takers to simply overpower the security force and take the journalist, usually with dire consequences for locally hired staff."

"Occasionally a journalist or media organization will collaborate with U.S. forces for protection. This is never more than an arrangement of personal security. Sections 403 to 407 of Title 50, USC, prohibit anyone with United States or foreign press credentials from formally collecting information or intelligence for U.S. forces. This same section does permit voluntary cooperation if the individual journalists realize that they are providing information to a U.S. intelligence entity. Journalists are never a part of the military forces, but they can be part of the information network. Journalists generally understand the local situation and can volunteer information, including information on their colleagues who are isolated or held hostage."

"Army forces sometimes allow news media representatives to embed, from field Army to platoon level. [...] By definition, embedded journalists become a part of the Army units to which temporarily assigned. They are therefore under the force protection umbrella, including personnel recovery."

See "Army Personnel Recovery," Field Manual 3-50.1, November 2011 (sections 4-52 to 4-58):

The previous edition of FM 3-50.1, dated August 2005, did not address the recovery of captured journalists.

THE DEPRECIATING DOLLAR, AND MORE FROM CRS

New or updated reports from the Congressional Research Service include the following.

The Depreciating Dollar: Economic Effects and Policy Response, February 23, 2012:

Monetary Policy and the Federal Reserve: Current Policy and Conditions, January 30, 2012:

Evaluating the Current Stance of Monetary Policy Using a Taylor Rule, January 30, 2012:

Who Earns Pass-Through Business Income? An Analysis of Individual Tax Return Data, February 16, 2012:

Taiwan: Major U.S. Arms Sales Since 1990, February 24, 2012:

Changes in the Arctic: Background and Issues for Congress, February 27, 2012:

Energy Projects on Federal Lands: Leasing and Authorization, February 1, 2012:

Financial Performance of the Major Oil Companies, 2007-2011, February 17, 2012:

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

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