A Sign of Hope for Reporters in CIA Leak Case

One judge questions whether the government has unchecked power to make journalists reveal their sources in issues before grand juries.

By Richard B. Schmitt

Los Angeles Times

December 9, 2004

WASHINGTON — Two journalists fighting to avoid jail for refusing to testify before a grand jury investigating the exposure of a CIA operative's identity appeared to find at least one sympathetic member on a federal appeals court panel Wednesday.

Judith Miller, a reporter for the New York Times, and Matthew Cooper, Time magazine's White House correspondent, are contesting an October ruling by a federal judge that held them in contempt for refusing to cooperate with federal investigators looking into the outing of CIA operative Valerie Plame in July 2003.

Both reporters face up to 18 months in jail. The case has come to symbolize a new era of aggressive tactics by prosecutors toward the media, testing the limits of government power to force journalists to reveal their sources even, in the case of Miller, for a story she never wrote.

Special prosecutor Patrick J. Fitzgerald has said the testimony of Cooper and Miller is crucial to his investigation, which is entering its second year, and many legal observers have predicted that the government will probably prevail.

Fitzgerald's case — echoed by an associate in court Wednesday — rests on a 1972 U.S. Supreme Court decision that requiring journalists to testify before a grand jury does not violate the 1st Amendment. In that case, the high court held that the public's interest in criminal law enforcement outweighed the right of journalists to maintain confidential sources.

At the hearing in the court of appeals for the District of Columbia, two of the judges on the panel seemed to agree that the earlier ruling was applicable to the Plame case. Reagan appointee David B. Sentelle and Clinton appointee David S. Tatel expressed skepticism at efforts by the journalists' lawyer, Floyd Abrams, to distinguish between the two cases.

But Tatel also indicated interest in whether there were separate legal grounds for establishing protection for journalists. He sharply questioned a Fitzgerald aide, Assistant U.S. Atty. James Fleissner, about whether the government should have unchecked power to force journalists to turn over their sources when they convene grand juries.

Tatel noted that a number of states had adopted shield laws protecting journalists since the Supreme Court acted in 1972, and that Congress had encouraged the courts to develop legal privileges in special cases.

In 1996, the Supreme Court extended an absolute right to psychotherapists to refuse to testify before grand juries about conversations with their patients. Tatel said that the legal justification for protecting journalists, at least under some circumstances, might even be stronger.

"The law's changed pretty dramatically," Tatel told Fleissner.

It is unclear when the court will issue a final ruling.

After the hearing, Abrams declined to speculate on how the court might act. He said the idea of even a "qualified privilege" for journalists "would be a significant advance over current law."

Miller said she was heartened by some of the questioning, and Cooper said he saw an irony in the government's position. "At a time when we are trying to promote democracy around the world, no American reporter should have to go to jail for doing his job," he said afterward on the courthouse steps.

Plame's husband, former envoy Joseph C. Wilson IV, has alleged that his wife was outed by the Bush administration in response to a column he wrote in July 2003 challenging a claim by President Bush in his January 2003 State of the Union address that Iraq had sought nuclear materials in Niger. Wilson had been sent to the tiny West African nation by the CIA in February 2002 to investigate such reports, and found no evidence to support them.

Eight days after Wilson's opinion article appeared in the New York Times, Plame was identified in a column by Robert Novak, who wrote that Wilson had been sent to Niger on the recommendation of his CIA operative wife. Novak cited "two senior administration officials," whom he didn't name, as sources.

It is not known whether Novak has been subpoenaed in the investigation. He and his lawyer have declined to comment.

Fitzgerald, the U.S. attorney in Chicago who was appointed last December to head the investigation, has interviewed Bush and Vice President Dick Cheney, as well as a number of other journalists who had conversations with administration officials around the time of the leak to Novak.

Cooper has been subpoenaed twice, agreeing to sit for a deposition and answer questions in August about conversations with a source who encouraged him to cooperate with Fitzgerald. Within days of that deposition, he was subpoenaed again to discuss what his lawyers described as "an expanded array of topics," triggering his objection and ultimately the contempt finding.

Unlike other reporters subpoenaed in the investigation, Miller never wrote about the Plame case. In court papers, she acknowledged doing some reporting about "Wilson and related matters." She has declined to answer Fitzgerald's questions, saying her conversations with her sources were in "strictest confidence."

The journalists' appeal was supported in court filings by a number of media organizations, including Tribune Co., the owner of the Los Angeles Times.