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Journalist ordered to appear before grand jury after refusing to reveal sources for article on alleged Chinese espionage in US

(RSF/IFEX) - RSF is alarmed by California Judge Cormac Carney's decision ordering William Gertz, a national security reporter for the "Washington Times", to appear in court for open-ended questioning on his reporting techniques. The order comes regarding Gertz's article discussing supposed espionage attempts by China in the United States.

"Confidentiality of sources is essential to the news-gathering process. The judge's decision to have this reporter publicly interrogated about his methods puts him in an uncomfortable situation and ignores the complexities and difficulties journalists face in doing their jobs. The judge's order looks like another attempt to get at the reporter's sources and raises troubling press freedom issues, endangering investigative journalism," RSF said.

According to a report by Josh Gerstein in "The New York Sun" on 17 July 2008, Judge Carney ordered Gertz to divulge his confidential sources for the article, claiming it disclosed secret grand jury information. Lawyers for Gertz disputed this claim, and moved to quash the subpoena. They argued that the request for the sources would interfere with Gertz's ability to gather news.

In response to the lawyers' arguments, Judge Carney decided to question the journalist about his reporting. He noted in an order filed on 14 July that while Gertz may be unwilling to disclose the identity of his sources, he should be prepared to testify on the newsworthiness of the case and why the confidentiality of sources is critical to his ability to engage in investigative reporting.

The judge's insistence on pursuing the case seems to stem from a disagreement at the Justice Department about whether or not Gertz should have been called to testify before another grand jury about his sources. Two prosecutors in the Justice Department had asked Attorney General Mukasey to authorize a subpoena for Gertz, but Mukasey had refused. Last week Jay Bratt, another prosecutor, filed to delay the hearing for two months. The government seems to be having trouble deciding whether or not prosecutors should take part in the questioning of Gertz and are trying to push back the hearing until their internal differences can be resolved.

Judge Carney refused to delay the hearing. John Solomon, Gertz's editor at the "Washington Times", told RSF, "We remain hopeful that the court will closely examine the merits of Bill's motion to quash. That motion clearly demonstrates that forcing Bill to testify would be an enormous infringement of his First Amendment rights and would have a chilling effect on future government officials' willingness to come forward and divulge the sort of national security concerns that Bill has made a career of exposing - always to the benefit of the American people. Secondly, the motion raises compelling questions about whether the information Bill published amounts to a prohibited grand jury leak. The motion recounts how various courts of appeal have concluded that news reports predicting future action by a grand jury do not constitute 6(e) violations. Similarly, the Justice Department itself has publicly taken that same position in recent cases. We believe the motion makes moot any need for Bill to testify. Furthermore, we hope all parties heed the will of the people as expressed by the current House of Representatives, which has overwhelming passed a reporters' shield law that would prohibit the government and courts from violating a reporters' confidentiality agreement with sources when there is no imminent danger."

The hearing is scheduled for the week of 21 July, with Gertz to testify before the court. Gertz has made a specialty of obtaining and publishing classified information over his long career as a journalist.

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