On Monday, the Justice Department argued that Fourth Circuit Court should uphold its July ruling that New York Times reporter James Risen was ineligible to claim reportorial privilege under the First Amendment, meaning that Risen would have to reveal if former CIA operative Jeffrey Sterling was the source of information published in Risen's book State of War.
Risen is in the process of appealing the July decision, but federal prosecutors assert that Risen cannot claim privilege because he is the "only eyewitness to the crimes charged [against Sterling] in the indictment." Risen claims that recent revisions to Justice Department guidelines about investigating the press should prevent the government from forcing him to reveal his source.
According to U.S. Attorney Neil MacBride and Acting Assistant Attorney General Mythili Raman, Risen is wrong. They wrote, "[a]lthough 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."
Risen vowed to go to prison before revealing the name of his source on the stand, but he may be just trying to bide time until Congress passes a stronger version of the media shield law—like the one Sen. Chuck Shumer (D-NY) and Sen. Lindsey Graham (R-SC) introduced. That would offer journalists federal shields much like those available at the state and local level, but even if passed, it would not provide absolute privilege.
NPR spoke to a Justice Department official on Monday who indicated that "the case would not end with Risen going to jail," but the official declined to elaborate as to why or how.