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Two Reporters Lose Appeals Court Ruling

Leak Case May Lead to Jail Time

By Dan Eggen
Washington Post Staff Writer
Wednesday, April 20, 2005; Page A06

A federal appeals court yesterday rejected a request for a new hearing by two journalists who could face jail time as early as next week for refusing to disclose their confidential sources to a grand jury investigating the leak of a CIA operative's name.

The decision by the full U.S. Court of Appeals in Washington accelerates the pace of the conflict between a special prosecutor and the two reporters, Matthew Cooper of Time magazine and Judith Miller of the New York Times. It also serves as a firm rebuke to major news organizations and First Amendment groups who had weighed in on the case, legal experts said.

Reporters Judith Miller and Matthew Cooper refused to name sources. (Susan Walsh -- AP)

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Both news organizations indicated yesterday that they would immediately seek a stay of the appellate court's order and would ask for a review of the case by the U.S. Supreme Court. Without such a stay, attorneys said, the case would be sent back next Tuesday to the lower court judge, Thomas F. Hogan, who first ordered the reporters jailed for as long as 18 months last October.

Toby Usnik, a New York Times spokesman, said in a statement: "We are disappointed with the court's decision and we will seek a stay in order to have sufficient time to seek U.S. Supreme Court review."

A similar statement by Time Inc. said the newsweekly was "disappointed but not surprised by the decision."

Yesterday's ruling marks the latest chapter in the ongoing Justice Department probe by Chicago U.S. Attorney Patrick J. Fitzgerald, who was appointed special prosecutor to determine whether a government official knowingly leaked the name of a CIA operative, Valerie Plame, to columnist Robert D. Novak in the summer of 2003. Fitzgerald, who has outraged the media and free press advocates by aggressively seeking testimony from reporters, indicated in court filings last month that he had completed his probe except for the testimony from Cooper and Miller.

A three-judge panel of the D.C. Circuit court ruled in February that Cooper and Miller should be jailed for contempt if they continued to refuse to name their sources, upholding Hogan's October decision.

The order issued by the full appeals court yesterday said that its members had voted against reconsidering the case, as requested by Cooper and Miller. Two of the court's nine judges did not take part in the voting.

In a concurring statement, Judge David S. Tatel wrote that the case did not raise questions of "exceptional importance" as required for a new hearing before a full appeals court. He also wrote that a 1972 Supreme Court case, Branzburg v. Hayes, clearly required reporters to testify in these circumstances and could only be limited by the higher court.

Attorneys for the Times and Time magazine argued that reporters have a First Amendment right to resist disclosing confidential sources. In a separate brief, several dozen news organizations argued that journalists should not be questioned because there was "doubt that a crime has been committed" in the disclosure of Plame's name.

To prove that a crime was committed, Fitzgerald must show that a government official revealed Plame's name or likeness while knowing that the administration was working to keep it concealed.

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