Jail time likely for journalists
Jail time now appears almost inevitable for Judith Miller of the New York Times and Matthew Cooper of Time magazine after the U.S. Supreme Court on Monday declined to review civil contempt cases against the two prominent journalists, both of whom have defied a lower court ruling ordering them to identify their confidential sources, who revealed the identity of covert CIA operative Valerie Plame.
Miller and Cooper are among a number of well-known Washington-based reporters who were contacted by an administration official or officials shopping the Plame story in an attempt to discredit her husband, former Ambassador Joseph C. Wilson IV, after he criticized President Bush's rationale for going to war in Iraq. Miller never wrote about Plame; Cooper ran an item on Time's website that identified Plame, but only after the operative's name first appeared in a syndicated piece by conservative Chicago Sun-Times columnist Robert Novak.
Their cases now revert to U.S. District Court in Washington where Judge Thomas F. Hogan could decide as early as this week when and where Miller and Cooper will serve their terms, which could run as long as 18 months. Hogan last fall ruled that the two reporters had no First Amendment privilege protecting them from testifying before a federal grand jury looking into the source of the leaks. The two have remained free pending appeal.
The high court's decision not to review the case sent tremors through the journalistic world, raising concerns about reporters' First Amendment privileges and their future ability to promise confidentiality to sources.
"This means the lives of two very fine journalists are more in shambles than they were the day before, and it also means that the whole idea of protection for confidential sources is in real disarray," says Paul McMasters of the First Amendment Center's Freedom Forum. "We have state attorneys general who were hoping for guidance from the Supreme Court, and we have a Justice Department that seems unhinged from its own guidelines."
Though the Supreme Court in 1972 recognized that "news gathering is not without First Amendment protections," there is no nationally recognized news gatherer's privilege, according to the First Amendment Center. But a number of state courts have offered protections for news gatherers, and more than 30 states and the District of Columbia, the center reports, have passed shield laws that protect reporters from unjustified subpoenas.
"There was great hope that the court would accept these cases and produce some clarity. Instead it chose to leave obscurity for a guide for reporters doing their jobs," McMasters says.
Other reporters who got the Plame tip, including NBC's Tim Russert, sidestepped the possibility of jail when their sources released them from their promise of confidentiality. Cooper initially testified with his source's approval but declined to answer more questions when called back for a second round. Because of the secretive nature of grand jury investigations, it is not known whether Novak, who publicly outed Plame in a 2003 column, has testified. He has consistently declined to comment but is not facing any contempt charge. The lack of attention to Novak suggests to some–including officials at the New York Times and Time magazine–that Special Counsel Patrick Fitzgerald's inquiry into the Plame lead has veered off course and now perhaps is looking into whether any official lied to the grand jury about leaking to the press.
"It is shocking that for doing some routine news gathering on an important public issue, keeping her word to her sources, and without even publishing a story about the CIA agent, Judy finds herself facing a prison sentence," Times publisher and company president Arthur Sulzberger Jr. said in a prepared statement. "That 49 states and many countries around the globe provide broad protection for journalists who have promised confidentiality to their sources makes today's decision even more disappointing."
Miller, in the same statement, said she is "extremely disappointed."
Time magazine, meanwhile, said it will ask Hogan to "reassess the privilege issues," as well as look into Fitzgerald's motivation in shifting focus of his investigation from tracking down a leaker whose outing of Plame may have broken the law to putting journalists in jail for contempt.
"Statements from the special counsel's office suggest his investigation has changed substantially since last summer, when he presented secret evidence to the district court," Time said in a prepared statement, adding that "there is reason to believe" that Fitzgerald has determined that the disclosure of Plame's name to Novak did not violate any law.
"If that is correct, his desire to know the sources for a subsequent article by Mr. Cooper and others . . . may be solely related to an investigation into whether witnesses made false statements during the course of [Fitzgerald's] investigation into this non-crime. Such an investigation of obstruction of justice or perjury may not rise to the level that justifies disclosure of information from or about a reporter's confidential sources under federal common law."
A bipartisan group of attorneys general from 34 states and the District of Columbia had encouraged the Supreme Court to take on the Miller-Cooper case to clarify a journalist's right to "keep sources confidential," as Connecticut Attorney General Richard Blumenthal said.