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Justice Backs Less Protective Ruling On Reporter Privilege

In a case closely watched by the intelligence community and the media, the Justice Department urged a federal appeals court on Monday to leave in place a court ruling that gives reporters little protection from testifying against their sources in criminal prosecutions.

Federal prosecutors told the Virginia-based U.S . Court of Appeals for the Fourth Circuit that its ruling earlier this year in the case of former CIA operative Jeffrey Sterling should stand. Sterling's accused of leaking classified information to New York Times reporter James Risen, whom prosecutors describe as the "only eyewitness to the crimes charged in the indictment."

Risen's been compelled to testify under orders that began under George W. Bush and continued into the Barack Obama administration. But his lawyers, citing new Justice Department guidelines that give reporters more protection from subpoenas, have pressed both Attorney General Eric Holder and the full 4th Circuit Appeals court to take another look at the issue. Risen's position has attracted support and friend of the court briefs from media coalitions that include NPR.

But the Justice Department, for now at least, has refused to budge.

"Risen asserts that the Justice Department's recent revisions to its internal guidelines concerning investigations involving members of the press support a common law privilege," wrote U.S. Attorney Neil MacBride and Acting Assistant Attorney General Mythili Raman. "That is incorrect. Although the Department has made significant changes to parts of its internal guidelines—in particular, to the guidelines governing the notice that must be given to reporters before the government may obtain their business records through legal process—the basic requirements Risen cites (that the information is essential, unavailable from another source, and sought as a last resort) have been in place for decades and have not changed."

In recent weeks, Risen has told friends and colleagues that he would fight the subpoena and would go to jail rather than implicate his alleged source.

A Justice Department official predicted to NPR Monday that "the case would not end with Risen going to jail," but the official declined to offer additional details about how that might work in practice.

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