The three-year legal ordeal of New York Times reporter James Risen is not over. But his battle with Justice Department prosecutors to avoid testifying before grand juries investigating allegations that led to the indictment of a former CIA officer was laid out last week publicly for the first time in a once-top secret judicial opinion.

In that November 2010 decision, U.S. District Court Judge Leonie M. Brinkema, who sits in Alexandria, granted Risen's motion to quash a subpoena from the Obama Justice Department that called for him to testify before the grand jury in the case being put together against Jeffrey A. Sterling, who as a CIA case officer was involved in a highly sensitive attempt to sabotage Iran's nuclear weapons program during the Bush administration.

Code-named Merlin, the clandestine operation became Chapter 9 in Risen's book, 'State of War,' which was published in January 2006. As Brinkema said in her opinion, the 2010 grand jury had been investigating not who Risen's source was, but how, when and why the highly classified CIA information 'was leaked to journalist James Risen.'

Risen was first subpoenaed in the case in January 2008 to get him to identify his source. That subpoena was partially quashed because the court found 'that the government already had strong evidence against Sterling and that Risen's testimony would simply amount to 'the icing on the cake,' ' according to Brinkema.

Under Justice Department rules, and previous court decisions, reporters are not to be called before grand juries if the government had not previously exhausted other means to gather information or if enough evidence for indictment had already been obtained.

Brinkema's opinion, which reviewed the government's information about Sterling and Risen, shows why Risen was not needed for the government to find probable cause to indict Sterling as the leaker of the information.

Sterling, according to the opinion, dealt with Risen after the then-CIA officer, an African American with seven years of service, had been questioned about failing to meet performance targets. In August 2000, he filed a discrimination complaint against the agency.

After the suit was dismissed, Brinkema said Sterling's employment was ended in January 2002. In March 2002, Risen wrote about the discrimination suit in which he described Sterling as having been 'assigned to try to recruit Iranians as spies.'

A year later, in March 2003, Sterling met with two staffers of the Senate Select Committee on Intelligence and discussed his lawsuit as well as the clandestine Iranian project. One of staffers later told the government, 'Sterling also threatened to go to the press,' though the staffer could not recall whether it was in regard to Merlin or the discrimination case. However, the lawsuit was already public knowledge.

From Feb. 27 to March 29, 2003, the government said there were seven calls placed between Sterling's home phone and Risen's home phone. In his own affidavit, Risen said he learned about Merlin in 2003 from sources to whom he promised confidentiality.

By Walter Pincus
Washington Post
Staff Writer