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Media Notes

In the Matt Cooper Case, Chilling Implications

By Howard Kurtz
Washington Post Staff Writer
Monday, August 16, 2004; Page C01

Should Matt Cooper go to jail?

No one who knows the amiable Time correspondent, who doubles as an amateur stand-up comedian, would think so. Yet he faces imprisonment -- not for lying, cheating or committing journalistic fraud, but for refusing to testify about confidential sources.

Cooper didn't "out" Valerie Plame as a CIA operative -- that was columnist Robert Novak, who refuses to say whether he has been subpoenaed by a special prosecutor investigating which senior Bush administration officials leaked the information. Cooper wrote a follow-up piece questioning whether the administration had "declared war" on Plame's husband, former ambassador Joe Wilson. But a federal judge has held Cooper in contempt of court, and he faces an unspecified period behind bars if Time's appeal fails.

Retiring columnist Jack Anderson, above, has denounced his partner of five years. (1972 Photo)

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Federal cases rarely reach this point because prosecutors try to avoid jailing journalists. For one thing, it usually produces bad press and outraged editorials. The underlying question is this: Do journalists deserve blanket immunity when accepting information that is illegal to leak, as in the Plame case?

"I admire Matthew Cooper for his willingness to go to jail," says Geneva Overholser, a former Des Moines Register editor and now a professor in the Missouri School of Journalism's Washington program. But, she says, reporters have been asking for trouble with their growing willingness to quote unnamed officials supplying derogatory information.

Thirty-one states and the District of Columbia have shield laws that protect journalists from having to reveal confidential sources (though the rules don't apply in federal cases). But those laws are premised on the notion that the sources are helping to uncover waste or corruption, not breaking the law themselves.

The Plame case "turns whistle-blowing on its head," says Overholser, a former Washington Post ombudsman. "Novak seems to have enabled somebody to commit wrongdoing. We should not let anonymous sources attack. It's ethically unsound."

Novak said on CNN last year that the CIA "asked me not to use her name, but never indicated it would endanger her or anybody else." His column criticized Wilson, who had challenged the administration's evidence that Iraq was trying to obtain uranium.

Cooper took the opposite tack, quoting Wilson as accusing the administration of a "smear job."

Floyd Abrams, the veteran First Amendment lawyer representing Time, sees far-reaching consequences if his side loses. Other journalists -- including Judith Miller of the New York Times (also represented by Abrams) and The Washington Post's Walter Pincus -- have been subpoenaed by prosecutor Patrick Fitzgerald.

"Journalists will live under a new regime in which they'll either have to cut back very substantially on the use of anonymous sources -- even in situations that the fiercest journalistic critics think are appropriate -- or accept a much higher level of punishment on a much more frequent basis than journalists are used to in this country," Abrams says.

Former U.S. attorney Joe diGenova says he declined to subpoena reporters for Newsweek and The Post when he was an independent counsel investigating who leaked information from Bill Clinton's passport file during the first Bush administration. "I deemed the crime, if it had been committed, insufficiently grave to warrant such an egregious intrusion into the First Amendment confidential source area," he says. "This is a very dangerous area for prosecutors."

Law enforcement officials routinely "leak information to the press," says diGenova, and "expect reporters are going to keep their confidence no matter what. And if that means going to jail, I think sources expect that."

Some legal experts say Time's chances on appeal are bleak under a 5 to 4 Supreme Court ruling in 1972 that requires journalists to cooperate if prosecutors demonstrate a legitimate need for the information.

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