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Analysis

In Leak Case, Reporters Lack Shield For Sources

By Charles Lane
Washington Post Staff Writer
Monday, November 29, 2004; Page A01

When unnamed Bush administration officials gave the name of CIA official Valerie Plame to syndicated columnist Robert D. Novak 16 months ago, many in the news media decried what they saw as the possibly illegal "outing" of a secret operative in reprisal for criticism of the administration by her husband, former ambassador Joseph C. Wilson IV.

What they did not foresee was that the investigation of this alleged crime would end up targeting the press.


Matthew Cooper of Time also refuses to testify about contacts. (File Photo)



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Two reporters, Matthew Cooper of Time magazine and Judith Miller of the New York Times -- neither of whom had anything to do with the leak to Novak -- now face as much as 18 months in jail for refusing a court order to testify about their contacts with confidential sources related to the Plame story.

The U.S. Court of Appeals for the District of Columbia Circuit will hear Cooper and Miller's appeal on Dec. 8. The ultimate result is in doubt, but for now their cases demonstrate an uncomfortable fact of life for Washington reporters: The symbiotic relationship between journalists and confidential sources enjoys less protection under federal law than it does in most states.

"I understand the desire to have a reporter privilege," said Geoffrey R. Stone, a professor of law at the University of Chicago who specializes in First Amendment issues. "The problem is that there isn't a privilege currently existing that's applicable to this situation -- yet they have gone around giving people promises of confidentiality."

The Miller and Cooper cases follow that of Providence, R.I., television reporter Jim Taricani, who was convicted of contempt Nov. 18 for refusing to reveal who illegally leaked him an FBI surveillance tape of payoffs to a former City Hall official; he faces as much as six months in jail. Five other reporters are appealing contempt citations over their refusal to testify about their confidential sources in a federal invasion-of-privacy lawsuit brought by former nuclear weapons scientist Wen Ho Lee.

The basic argument in favor of legal protection for a reporter's pledge of confidentiality is that the public interest is served by making sure that whistle-blowers can take their tales of official wrongdoing to the news media without fear of reprisal.

In 49 of the 50 states, plus the District, that argument has carried the day, and a reporter's privilege of some kind has been recognized either by a "shield law" or by a court decision.

Some federal appeals courts have also recognized such a privilege in federal lawsuits brought by private parties.

However, the counterargument is that reporters, no less than other citizens, have a duty to tell the authorities about criminal conduct they may have witnessed.

And that persuaded five members of the Supreme Court when it ruled in 1972, in Branzburg v. Hayes, that the First Amendment does not protect journalists from being subpoenaed by a federal grand jury.

Justice Byron R. White wrote that there was "no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial."

There is no federal "shield law," though Sen. Christopher J. Dodd (D-Conn.) has proposed one since the Miller and Cooper cases.

Chief Judge Thomas F. Hogan of the U.S. District Court in Washington cited Branzburg in ordering Cooper and Miller to testify.


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