Reporters at the New York Times and Time magazine may be jailed if they continue to refuse to answer questions before a grand jury about their confidential conversations with government sources regarding the leak of a covert CIA officer's identity, a federal appeals court ruled yesterday.
The decision upholds a trial court's finding last year that Judith Miller of the New York Times and Matthew Cooper of Time magazine are in contempt of court and should be compelled to testify as part of an investigation into whether Bush administration officials knowingly leaked the name of CIA operative Valerie Plame in the summer of 2003.
Judith Miller of the New York Times and Matthew Cooper of Time magazine face jail time if they continue to refuse to answer questions before a grand jury.
The unanimous opinion was an expected but still painful blow for the reporters, their news organizations, other media and advocates of free speech. The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled there is no First Amendment privilege that allows reporters to conceal information they gather from a criminal inquiry.
The 81-page ruling held out some hope for the media, with two judges suggesting that common law could shield journalists seeking to protect the identity of confidential sources in other situations.
The panel's decision is the first time in more than 30 years that a federal appeals court specifically addressed whether reporters can be forced to break their promise to unnamed sources when a prosecutor is trying to solve a crime.
Miller, 57, and Cooper, 42, have fought to quash subpoenas requiring them to answer questions from a special prosecutor. Plame's name first appeared in a July 14, 2003, syndicated column by Robert D. Novak, weeks after her husband, former ambassador Joseph C. Wilson IV, criticized the Bush administration in a newspaper opinion piece.
Wilson had been asked by the CIA to visit Niger in 2002 to investigate reports that Iraq hoped to buy uranium for nuclear weapons. After returning, Wilson alleged that President Bush had exaggerated that evidence to justify going to war.
Novak's column said two unnamed administration officials had told him that Wilson's wife was a CIA "operative" and had helped arrange his trip to Niger.
A government official who knowingly identifies a covert operative could be in violation of the Intelligence Identities Protection Act. After a public uproar over the leak, the Justice Department appointed Special Counsel Patrick Fitzgerald to investigate.
According to the appellate court's opinion, Fitzgerald knows the identity of the person with whom Miller spoke and wants to question her about her contact with that "specified government official" on or about July 6, 2003. Miller never wrote a story on the subject.
In a statement, Fitzgerald said: "We look forward to resuming our progress in this investigation and bringing it to a prompt conclusion."
Prosecutors have questioned other journalists, including two from The Washington Post. Novak has refused to say whether he was subpoenaed to appear before the grand jury or has spoken with prosecutors.
Lawyers for the Times and Time said they will appeal the decision to the full appellate court and possibly to the Supreme Court and will seek a stay from the appellate court to keep the reporters out of jail while the case is pending.
Chief Judge Thomas F. Hogan found Miller and Cooper in contempt in October and had ordered the two detained for as long as 18 months or until the grand jury's term expires, whichever was shorter. The term is set to expire at the end of April but could be renewed.