A federal court should first determine whether a crime has been committed in the disclosure of an undercover CIA operative's name before prosecutors are allowed to continue seeking testimony from journalists about their confidential sources, the nation's largest news organizations and journalism groups asserted in a court filing yesterday.
The 40-page brief, filed in the U.S. Court of Appeals for the District of Columbia Circuit, argues that there is "ample evidence . . . to doubt that a crime has been committed" in the case, which centers on the question of whether Bush administration officials knowingly revealed the identity of undercover CIA operative Valerie Plame in the summer of 2003. Plame's name was published first by syndicated columnist Robert D. Novak and later by other publications.
The friend-of-the-court brief was filed by 36 news organizations, including The Washington Post and major broadcast and cable television news networks, in support of reporters at the New York Times and Time magazine who face possible jail time for refusing to cooperate with a grand jury investigating the allegations. Those two organizations filed a petition Tuesday asking the full appeals court to review the case.
A three-judge panel of the D.C. Circuit ruled in February that two reporters -- Judith Miller of the Times and Matthew Cooper of Time -- should be jailed for contempt if they continued to refuse to name their sources to the grand jury.
Attorneys for the news organizations said yesterday that their decision to submit the brief underscores deep concern in the journalism community over special prosecutor Patrick Fitzgerald's tactics. Fitzgerald, who heads the U.S. attorney's office in Chicago, is in the midst of two separate battles with journalists over testimony related to confidential sources.
The petition by the Times and Time magazine focuses on whether reporters have a First Amendment right to resist disclosure of confidential sources.
The brief by the other news organizations takes a different approach: It argues that the statute at issue in the case, the Intelligence Identities Protection Act of 1982, was aimed at egregious attempts to expose U.S. spies and was crafted to avoid ensnaring reporters going about their business.
It asks for a hearing to determine whether a crime has even been committed.
Bruce W. Sanford, a lawyer who handled the case for the group of news organizations, said yesterday that "it's a very poor result if somehow reporters got entangled in a net of prison sentences in an investigation which ends up with no indictment because no crime has been committed."
Attorneys for the Times and Time magazine have said that they will appeal to the Supreme Court if necessary.