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In Ruling Ordering Times Reporter to Testify Against Source, Dissenting Judge Defends Freedom of the Press | The Dissent

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For example, the Washington Post"s Dana Priest noted in her affidavit that reporting on military prisoners at Guantanamo Bay, Cuba, prison abuse in Abu Ghraib, the existence of secret CIA prisons and "systematic lack of adequate care" for veterans at Walter Reed Army Medical Center would not have been possible without confidential sources, who were willing to speak to the press.

Gregory considered the newsworthiness of what Risen published versus the harm that may have been caused by publishing a story with classified information that Sterling was not authorized to release. He concluded the newsworthiness "appeared to be substantial."

The information contained in chapter nine of State of War covers the United States intelligence community's efforts concerning the development of the Iranian nuclear program. The chapter questions the competence of the CIA's management of Classified Program No. 1. Chapter nine discusses a plan to have a former Russian scientist give Iranian officials incorrect nuclear weapon design specifications in an attempt to determine the status of the Iranian nuclear weapons program, and to stall or thwart the progress of that program, perhaps for years. The blueprints were so deficient, the chapter opines, that the Russian scientist spotted a flaw almost immediately. Although the scientist explained this flaw to the CIA, Risen writes, the CIA proceeded with the plot. In a letter accompanying the blueprints, the Russian scientist disclosed to the Iranians the flaw he spotted in the plans. Because the Iranians had received scientific help from Russian and Chinese scientists, the chapter continues, and because Iran already had black market nuclear blueprints, Iranian scientists could likely differentiate the good from the flawed in the American blueprints. In other words, Risen asserts, Classified Operation No. 1 may have helped Iran advance its nuclear program. The chapter also describes the inadvertent disclosure to an Iranian double-agent of the identities of every spy the CIA had within Iran -- information that was then turned over to Iranian security officials, who in turn arrested a number of those agents. Finally, the chapter recounts the CIA's inability to obtain more than "fragmentary information about Iran's nuclear program."

All of which indicates the US government was executing a "blundered American intelligence mission" in Iran.

Risen highlighted how US intelligence failed to uncover weapons of mass destruction in Iraq. His "investigation into the methods and capabilities of the United States foreign intelligence community with respect to the Iranian nuclear program is surely news of the highest import, particularly given the apparent contretemps made in the National Intelligence Estimate of 2007." His reporting on "Iran's nuclear capabilities is also particularly relevant given the criticism of the national press for its perceived failure to scrutinize United States intelligence regarding Iraq's weapons capabilities."

Such an assessment by Gregory is remarkable given the fact that most judges since the September 11th attacks would be inclined to assess how a journalist's reporting could be damaging to national security instead of explicitly detailing the value of it.

It is also important to note what Gregory described about "newsworthiness" in his dissenting opinion:

By "newsworthiness," I mean the value to the public of the leaked information concerning the issues of the day. Necessarily included in the concept of "newsworthiness" is the recognition that because this privilege is qualified, it will likely deter some potential sources from disclosing their information. Because the newsworthiness of the information cannot be adjudged by a court at the time of disclosure, a source takes a chance that a court will not protect the source. While this is somewhat speculative -- not all reporters with confidential sources are routinely subpoenaed -- to the extent this is a problem, the potential of this chilling effect counsels a broad definition of "newsworthiness." On the other  hand, I would reject an absolute privilege because some discussions should be chilled -- precisely those that seriously endanger individuals or our nation's security without an outweighing, compelling civic benefit.

This is the real danger the ruling poses to journalism--fear of being forced to testify against confidential sources would escalate.

As Gregory strongly and appropriately concluded:

Under the majority's articulation of the reporter's privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial. The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society. The First Amendment was designed to counteract the very result the majority reaches today.

Risen has apparently committed to going to prison before testifying in this case and will appeal this all the way up to the Supreme Court.

That Risen is in this position is a sad statement on freedom of the press in America. It also is but another example of how the administration of President Barack Obama has been more than willing to protect national security interests at the expense of freedom of the press.


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Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure." He was an editor for

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