[Intelforum] Secrecy News -- 02/29/12
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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
** ARMY: RECOVERY OF CAPTURED JOURNALISTS POSES "CHALLENGES"
** THE DEPRECIATING DOLLAR, AND MORE FROM CRS
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
"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
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
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
"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
"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
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
The Depreciating Dollar: Economic Effects and Policy Response, February
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,
Energy Projects on Federal Lands: Leasing and Authorization, February 1,
Financial Performance of the Major Oil Companies, 2007-2011, February 17,
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
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