DOJ, Which Once Claimed James Risen's Testimony Was Necessary, Now Tries To Block Other Side From Using Him

from the funny-how-that-works dept

Tue, Jan 13th 2015 6:15am — Mike Masnick

The James Risen saga is basically over, but ended in a bizarre way. As you hopefully recall, this case goes back many years, and involves the DOJ trying to convict Jeffrey Sterling, a former CIA official, of leaking info to Risen. However, Risen has made the compelling case that the DOJ's desire to involve him was an attempt to punish him for earlier work he'd done exposing questionable practices by the intelligence community -- and specifically to force Risen to give up a source, so that future whistleblowers can't trust him. This backfired massively, as Risen fought this entirely, promising never to give up his source, even as the issue went up the Supreme Court (which refused to hear the case), but technically ended with a court saying Risen had to give up his source. Risen still insisted that he would not, and he'd go to jail if he had to. This put Attorney General Eric Holder in a bit of a bind, as he'd promised not to put reporters in jail. Thus, last month, Holder blinked, saying the DOJ would not force Risen to give up his source. However, he was still supposed to testify, just not on that.

Last week, Risen took the stand and basically said absolutely nothing, leading the DOJ on Monday to tell the court that it wanted to "exclude James Risen as an unavailable witness." The filing is fairly amusing, as it admits that Risen is refusing to reveal anything:

Mr. Risen’s under-oath testimony has now laid to rest any doubt concerning whether he will ever disclose his source or sources for Chapter 9 of State of War (or, for that matter, anything else he’s written). He will not. As a result, the government does not intend to call him as a witness at trial. Doing so would simply frustrate the truth-seeking function of the trial.

But as you read it, you realize that the key reason for the filing isn't to admit defeat, but rather to block Sterling's lawyers from using Risen's refusal to testify (or the fact that, in previous filings, the DOJ had said, directly, that without Risen's testimony, they couldn't convict Sterling).

This is true irrespective of whether he is called by the government or the defense—he is unavailable to both parties. The law makes clear that testimony that is not subject to meaningful cross-examination regarding non-collateral matters is antithetical to the purpose of a trial and should be excluded.

And, specifically, please oh please, don't let Sterling's lawyers mention anything about all of this to the jury:

Moreover, since Mr. Risen is not available as a witness on the central issue in the case, the defendant should be prohibited from commenting on Mr. Risen’s failure to appear or suggesting that the government has failed to meet its burden because it did not call him as a witness.

In response, the judge refused the DOJ's request to declare Risen "unavailable" for both sides, and everyone's figuring out how to proceed, with Sterling's lawyers saying that they want to use earlier Risen testimony about how he had multiple sources for his book.

Either way, the DOJ comes out of this looking terrible, and James Risen has made it clear that, if you're a whistleblower, you certainly can trust him not to reveal who you are to the government...

150112 Risen Unavailable (PDF)150112 Risen Unavailable (Text)

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Filed Under: cia, doj, eric holder, evidence, james risen, jeffrey sterline, leaks, sources, whistleblowers

14 Comments

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That One Guy (profile), 13 Jan 2015 @ 6:20am

Mmmm, schadenfreude...
I can't help but grin when I think of how completely and utterly the DOJ screwed up here. Sure they put Risen through a tough time, but at the end of it, they came out looking like fools(at best), while his reputation for protecting his sources, past and future, has gotten a massive boost from the whole thing.

Hell, even the DOJ is admitting that even on the stand, Risen is not talking, you don't get higher praise than that when it comes to protecting your sources.
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David, 13 Jan 2015 @ 6:33am

You wish
James Risen has made it clear that, if you're a whistleblower, you certainly can trust him not to reveal who you are to the government...

But he'll be bugged beyond belief anyway so it does not matter: he is more or less burnt as a recipient for that kind of information.

However, the message still is that there are reporters with integrity. And unless the Department of Justice bugs every reporter's communications, there is still some hope that you can find someone who is willing to perform in the manner a free and independent press is supposed to perform.

And that's an encouraging message that the U.S. now needs more than ever.
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mcinsand, 13 Jan 2015 @ 6:45am

so, though persecuted, Risen's credibility takes a huge boost
Not that this would compensate Risen for the DOJ's harassment, but, in their efforts to run him through the wringer, they have only helped his career standing.
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balaknair (profile), 13 Jan 2015 @ 7:13am

Re: You wish
"unless the Department of Justice bugs every reporter's communications"
I'd say don't give them ideas, but the five eyes intel agencies have probably been trying to do just that, for everyone, not just reporters.
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Anon E. Mous (profile), 13 Jan 2015 @ 7:23am

And once again the U.S. DOJ seeks to stack the deck in it's own favor.

Why should anyone be surprised at the typical flip flop the DOJ does whenever it feels it's leverage and case isn't what it's cracked up to be.
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John Fenderson (profile), 13 Jan 2015 @ 7:30am

Re: You wish
"But he'll be bugged beyond belief anyway so it does not matter: he is more or less burnt as a recipient for that kind of information."

I dunno. If I were a whistleblower, I'd be more comfortable talking to him than anyone else. I just wouldn't do it over the phone, internet, or any place where we could be predicted to meet.
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Groaker (profile), 13 Jan 2015 @ 8:43am

DOJ
The author has stated "the DOJ comes out of this looking terrible..."

I must disagree. This (relatively) trivial offense can have no impact upon the sordid reputation of the DOJ. For that to occur, the DOJ would have to do something like carry out the Roman practice of decimation against the entire population.
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Kevin Schmidt, 13 Jan 2015 @ 11:28am

DOJ End Game
This is only one battle, not the war.
In the end, the DOJ continues to protect war criminals and Wall Street banksters and other corporate thugs, while prosecuting legitimate whistle blowers and us "little people."
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Kevin Schmidt, 13 Jan 2015 @ 11:42am

Realistically speaking, they could designate all Muslims as terrorists, (like the Europeans are trying to do by scapegoating them)have them rounded up and thrown into Helliburton built concentration camps.
Oops! That's basically what they already did with undocumented immigrants.
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Anonymous Coward, 13 Jan 2015 @ 11:55am

Holder openly lies in court and gets away with it, picks and chooses what laws to enforce, what laws to ignore.

Your dealing with a department of injustice that only cares about who pays them off the most.
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Anonymous Coward, 13 Jan 2015 @ 11:57am

Re:
like the FEMA camps that don't exist unless the government acknowledges they exist right. Kind of creepy how history repeats itself in a populace that willingly closes their eyes and ears to what they don't want to see or hear
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art guerrilla (profile), 13 Jan 2015 @ 12:05pm

James Risen =
ONE standup mother fucker ! ! !

THANK YOU MR. Risen, you are one of the last to stand on principles (if not constitutional law), when all the rest have sworn fealty to Empire, or pussed out on their duties as proxies for the 99%...
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Anonymous Coward, 13 Jan 2015 @ 3:19pm

James Risen is one of my role models. He has great integrity, courage, and is a true patriot. Which is more than I can say about those at the DOJ looking to coverup a plot that helped Iran build a nuclear weapon.
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Anonymous Coward, 13 Jan 2015 @ 7:27pm

Risen up, back on the street
Did my time, took my chances
Went the distance now I'm back on my feet
Just a man and his will to survive.
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