Judge Slams Feds For Its Attempt To Punish Another Whistleblower

from the this-strategy-isn't-working-out-so-well dept

Part of President Obama's campaign promise was more transparency and more encouragement of whistleblowing. And yet, as we've noted, he's gone after more whistleblowers using the Espionage Act than all other former Presidents combined. However, Obama's legal attacks on whistleblowers so far don't have a very good track record. The attack on Thomas Drake -- threatening him with the potential of 35 years in jail for complaining about waste and abuse in the NSA -- fizzled. And now the latest attempt to put reporter James Risen in jail, unless he testified about his sources, has also failed.

A judge has quashed the subpoena by the government to force Risen to reveal his sources. The entire ruling by the court (issued last week, but made public this week) is worth reading as it goes through the full history and details of the case. But the key point is at the end, where the judge basically says that the government is pretty clearly just trying to harass a reporter for reporting on a secret government program. The government doesn't need Risen to make its case, but it's trying to compel him to reveal sources, knowing that this will scare some journalists from reporting but, more importantly, because it will scare off whistleblowers from going to reporters, if they could be compelled to reveal the sources. The judge isn't buying the government's argument:
Rather than explaining why the government's need for Risen's testimony outweighs the qualified reporter's privilege, the government devotes most of its energy to arguing that the reporter's privilege does not exist in criminal proceedings that are brought in good faith. Fourth Circuit precedent does not support that position. Moreover, the government has not summarized the extensive evidence that it already has collected through alternative means. Nor has the government established that Risen's testimony is necessary or critical to proving Sterling's guilt beyond a reasonable doubt. A criminal trial subpoena is not a free pass for the government to rifle through a reporter's notebook. The government must establish that there is a compelling interest for the journalist's testimony, and that there are no other means for obtaining the equivalent of that testimony.
It isn't a complete victory, in that Risen still can be made to testify, but on very limited subjects that don't break the reporter's confidentiality with his source.

Of course, rather than stop harassing Risen, the government has already announced it intends to appeal. Pretty sad for a President who once said that whistleblowers are "often the best source of information about waste, fraud, and abuse in government," to now support a campaign that is blatantly designed to scare off whistleblowing.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Nicedoggy, Aug 5th, 2011 @ 9:49am

    That least it recognizes the first amendment unlike some other judges.
    https://www.eff.org/deeplinks/2011/08/court-refuses-give-seized-domain-name-back-claims

     

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  2.  
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    nasch (profile), Aug 5th, 2011 @ 9:54am

    What would be a complete victory?

    It isn't a complete victory, in that Risen still can be made to testify, but on very limited subjects that don't break the reporter's confidentiality with his source.

    You seem to be suggesting that it would be better if reporters never had to testify about anything at all. If the subjects don't have anything to do with confidential sources, why should he be protected from testifying?

     

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  3.  
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    Mike Masnick (profile), Aug 5th, 2011 @ 9:58am

    Re: What would be a complete victory?

    You seem to be suggesting that it would be better if reporters never had to testify about anything at all. If the subjects don't have anything to do with confidential sources, why should he be protected from testifying

    That's a fair point. Though my original thinking was that the only reason to get him on the stand was to scare off other reporters (and whistleblowers). But in thinking about it, you may be right that I'm going too far.

     

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  4.  
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    Tallbonez (profile), Aug 5th, 2011 @ 10:17am

    Change

    Because Nixon 2.0 is indeed a change.

     

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  5.  
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    Chris Rhodes (profile), Aug 5th, 2011 @ 10:27am

    Re: What would be a complete victory?

    You seem to be suggesting that it would be better if reporters never had to testify about anything at all.

    In general, I'm not a fan of forcing anyone to testify, reporter or not. That's probably just me though.

     

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  6.  
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    Ninja (profile), Aug 5th, 2011 @ 10:36am

    Re: Re: What would be a complete victory?

    Actually, it could be interpreted that way but this case is a clear example of one he shouldn't even need to testify but rather Govt should be looking onto what he revealed.

    I wouldn't blame Obama on all this mess. Any1 that thinks the President has the power is simply too naive. The President has part of the power and the US Govt is clearly undermining his slice of the power pie. There are other ppl, powers working in the current political scenario.

    Bush played along with all of these powers to some degree and that's why he managed to put so many atrocities in motion (Patriot Act, Guantanamo comes to mind but they are just the most evident). And while he was working with those power he helped to consolidate them. That's part of the reason Obama is stuck. The other part is his own lack of experience and misplaced priorities.

    Obviously Bush isn't the only one at fault, it's a scenario being built for a while now under a rotten system that was marketed to the world as the American Way. But we can see now how good it is. And the whole world is paying the price for their own greed and myopia. Rising the American debt ceiling is just postponing the inevitable. And the US Govt seems to be unwilling to proceed with the needed reforms and reviews of their own laws, taxes, social and financial systems.

    I was sincerely surprised when I saw an orthodox economist advocating that a general moratorium of all debts would be the not so bad solution. But again, that would only postpone the inevitable. We need reforms. Everywhere. And the whistle-blowers are showing that much to the irritation of the ppl in power whom will resort to this legal bullying to silence those guys. So, the much needed reforms won't probably come peacefully and painlessly.

     

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  7.  
    identicon
    Anonymous Coward, Aug 5th, 2011 @ 10:39am

    Re: Re: What would be a complete victory?

    Jesus Christ, Mike, what's with the reasonableness?

    I want frothing rage and stubborn indignation!

    (Seriously, I always like seeing how class-act you are with fair and reasonable discourse. Flame away, other AC's.)

     

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  8.  
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    william (profile), Aug 5th, 2011 @ 10:55am

    Re: Change

    Obama is such a let down. For a Canadian watching from the north, i am really cringing at his actions over and over again.

    All those news magazines and clipping that I have lying around in the house just adds to the irony.

    Guess either Washington is too deep a pond for our little black friend here or he's just disingenuous to begin with. Personally I think he's probably a bit of both.

     

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  9.  
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    Chuck Norris' Enemy (deceased) (profile), Aug 5th, 2011 @ 11:38am

    Re: Re: Re: What would be a complete victory?

    I wouldn't blame Obama on all this mess. Any1 that thinks the President has the power is simply too naive.

    ??? - Obama handpicks the U.S. Attorney General...you know the guy that prosecutes whistleblowers. If he doesn't do Obama's bidding you can guess who will be stepping down quickly.

    "The Attorney General is nominated by the President of the United States and takes office after confirmation by the United States Senate. He or she serves at the pleasure of the President and can be removed by the President at any time;..."

     

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  10.  
    identicon
    Anonymous Coward, Aug 5th, 2011 @ 12:06pm

    Re: Re: Change

    Remember, he's from the same city that spawned Rod Blagojevich.

     

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  11.  
    identicon
    Anonymous Coward, Aug 5th, 2011 @ 12:29pm

    Re: complain about the judge

    to his superiors

     

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  12.  
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    hmm (profile), Aug 5th, 2011 @ 1:23pm

    we can change

    As obama said "we CAN change"....

    Apparently the USA *Has* changed...into a nation which harasses journalists that the goverment doesn't like.

    With a government that has basically decided that the entire US constitution including the first amendment doesnt mean shit and if anyone says otherwise then they must be terrorists and can be "disappeared" quite easily......

     

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  13.  
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    nasch (profile), Aug 5th, 2011 @ 1:31pm

    Re: Re: What would be a complete victory?

    You might feel differently if you were charged with a crime and needed someone's testimony to demonstrate your innocence.

     

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  14.  
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    Chris Rhodes (profile), Aug 6th, 2011 @ 7:27pm

    Re: Re: Re: What would be a complete victory?

    Threatening someone into testifying when it may be against their best interest runs counter to my entire system of morality.


    And even if, for some reason, I did a complete about-face in a time of great personal stress, my emotional state would still make a poor yardstick for public policy.

     

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  15.  
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    nasch (profile), Aug 6th, 2011 @ 9:07pm

    Re: Re: Re: Re: What would be a complete victory?

    Threatening someone into testifying when it may be against their best interest runs counter to my entire system of morality.

    Better to let innocent people go to jail then?

    And even if, for some reason, I did a complete about-face in a time of great personal stress, my emotional state would still make a poor yardstick for public policy.

    Yes, just trying to offer a different perspective.

     

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  16.  
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    WysiWyg (profile), Aug 7th, 2011 @ 2:41am

    The Swedish way...

    I guess Sweden got it right for once. Over here it's illegal for the government (and private actors too if I remember correctly) to even ASK about a reporters sources. And said reporters have a legal OBLIGATION to protect the confidentiality of their sources.

     

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  17.  
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    Chris Rhodes (profile), Aug 7th, 2011 @ 10:27am

    Re: Re: Re: Re: Re: What would be a complete victory?

    Better to let innocent people go to jail then?

    Better not to hurt people simply because they don't do what you tell them to.

    Yes, just trying to offer a different perspective.

    I can sympathize, but it's still a very bad argument.

    "I think everyone deserves a trial."
    "If you thought a man raped your daughter, you'd want to see him tortured and killed without a trial!"

     

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  18.  
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    nasch (profile), Aug 7th, 2011 @ 4:07pm

    Re: Re: Re: Re: Re: Re: What would be a complete victory?

    Better not to hurt people simply because they don't do what you tell them to.

    But what about the situation where court is going to hurt someone - either the witness who doesn't want to testify, or the defendant who needs the witness' testimony? Which hurt is worse?

    I can sympathize, but it's still a very bad argument.

    I didn't mean for it to be an actual argument, just to get you to think about the innocent accused who need someone's testimony to prove their innocence. If you think it's OK to send them to jail because they can't get the evidence they need, then OK, I just disagree.

     

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  19.  
    identicon
    Anonymous Coward, Aug 8th, 2011 @ 2:00am

    Re: Re: Re: What would be a complete victory?

    Shouldn't the fact that a key witness refuse to testify be considered "reasonable doubt"?

     

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  20.  
    identicon
    Someantimalwareguy, Aug 8th, 2011 @ 8:15am

    Same s***, different day

    There has always been a love/hate relationship between journalists and politicians and to suggest that this is something new ignores about 200 years of history here in the US. The only real differences this time around are that the politicians think they have a larger stick to swat at the reporters who don't tow the line and more "reasonable" outlets who serve more as propaganda arms for the two major parties.

    It is just easier for the Government to attack these days, but the game still remains the same...

    JMHO

     

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  21.  
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    nasch (profile), Aug 8th, 2011 @ 9:00am

    Re: Re: Re: Re: What would be a complete victory?

    Absolutely not. They could be afraid of reprisal.

     

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  22.  
    identicon
    Casey Mahoney, Aug 8th, 2011 @ 2:27pm

    Whistleblower

    People should have a right for free speech.If they see something wrong,come forward and state it.Now people are scared to say anything.

    Thanks Casey Mahoney

     

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  23.  
    icon
    Chris Rhodes (profile), Aug 9th, 2011 @ 12:24pm

    Re: Re: Re: Re: Re: Re: Re: What would be a complete victory?

    But what about the situation where court is going to hurt someone - either the witness who doesn't want to testify, or the defendant who needs the witness' testimony? Which hurt is worse?

    Hurting an innocent to stop someone else from hurting an innocent seems like a poor way to go about things. I won't violate my code of morality simply to stop someone else from violating theirs.

    If you think it's OK to send them to jail because they can't get the evidence they need, then OK, I just disagree.

    And yet you think it's okay to send someone to jail if they don't forfeit their life by testifying against the mafia, for example. So yes, we disagree. :)

     

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  24.  
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    nasch (profile), Aug 9th, 2011 @ 12:56pm

    Re: Re: Re: Re: Re: Re: Re: Re: What would be a complete victory?

    And yet you think it's okay to send someone to jail if they don't forfeit their life by testifying against the mafia, for example.

    I would appreciate it if you didn't put words in my mouth. I didn't say that.

     

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  25.  
    icon
    Chris Rhodes (profile), Aug 9th, 2011 @ 3:00pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: What would be a complete victory?

    So you would only compel witnesses in service of the defense, but not the prosecution? How would that work?

     

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  26.  
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    nasch (profile), Aug 10th, 2011 @ 9:45pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: What would be a complete victory?

    No, I would not compel witnesses to testify without making sure they're not going to get killed (or hurt) regardless of who they're testifying for. Presently that's accomplished with the witness protection program. Is that the best solution? I don't know.

    One problem with optional testimony is there's little incentive to testify ever, unless it's on behalf of someone you actually know. Some people would (secretly) demand payment for testimony, because they know they can refuse to testify. When the state can compel testimony, witnesses can't make such threats/offers.

     

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  27.  
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    Chris Rhodes (profile), Aug 10th, 2011 @ 11:53pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: What would be a complete victory?

    Presently that's accomplished with the witness protection program.

    I'd consider moving away from your home and giving up contact with anyone you ever knew to be "forfeiting your life".

    Giving someone an option between (A) you destroying their life now, and (B) you sending armed men to kidnap them and throw them in a cage until they agree to do what you want, and then you'll destroy their life? That ain't moral by any stretch of the imagination.

     

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  28.  
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    nasch (profile), Aug 11th, 2011 @ 7:16am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: What would be a complete victory?

    No, I would not compel witnesses to testify without making sure they're not going to get killed (or hurt) regardless of who they're testifying for. Presently that's accomplished with the witness protection program. Is that the best solution? I don't know.

    One problem with optional testimony is there's little incentive to testify ever, unless it's on behalf of someone you actually know. Some people would (secretly) demand payment for testimony, because they know they can refuse to testify. When the state can compel testimony, witnesses can't make such threats/offers.

     

    reply to this | link to this | view in thread ]

  29.  
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    nasch (profile), Aug 11th, 2011 @ 8:51am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: What would be a complete victory?

    Yes, it's definitely problematic. What is the right balancing point between the different interests? I'm not sure. What do you think about what I said regarding the problems of voluntary testimony?

     

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  30.  
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    Chris Rhodes (profile), Aug 11th, 2011 @ 12:17pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: What would be a complete victory?

    I agree that there are issues with freedom. Freedom isn't orderly; It's chaotic, and it's outcomes aren't always perfect.

    I'll still take it over an authoritarian boot to the face, though.

     

    reply to this | link to this | view in thread ]


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