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.
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.
The Time piece co-authored by Cooper quoted Lewis "Scooter" Libby, Vice President Cheney's chief of staff. With Libby's approval, NBC's Tim Russert and The Post's Glenn Kessler recently testified about conversations with him, saying no confidential sources were involved.
Abrams argues that "journalists who report about newsworthy events -- particularly about the functioning of government itself -- often need to provide confidentiality to be assured of receiving information."
So: Should Cooper go to jail? It's hard to see what purpose would be served by imprisoning a reporter who is determined not to betray his pledge of confidentiality. The real targets, after all, are the government officials who may have illegally blown Plame's cover. But it is Cooper who may get the first glimpse of a new, more chilling legal terrain for journalists.
When an ailing Jack Anderson announced his retirement last month, that seemed to mark the end of his syndicated Washington Merry-Go-Round column. But his partner Douglas Cohn later announced that he would continue it with his co-author, Newsweek's Eleanor Clift.
Now, for the first time, the 81-year-old journalist, disabled by Parkinson's disease, has broken his silence. In a frail voice, Anderson, who uses a wheelchair, said from his Bethesda home that he does not want Cohn to continue the column because "he has proven to be untrustworthy, I regret to say." The column should survive only "if my heirs feel they can continue in some way."
Cohn has been battling with Kevin Anderson, the Pulitzer Prize winner's son and attorney, who says he is fighting to protect "Dad's legacy." Although he has no "personal vendetta against Doug," Kevin Anderson says, "Washington Merry-Go-Round was never a political commentary think piece. It was a hard-news, investigative reporting column." He acknowledged, however, that his father had virtually no involvement in the column for the past three years as Cohn published it under a joint byline.
"It had always been the intent that I would continue the column when he retired," says Cohn, Anderson's partner since 1999, who says he has received only two cancellations from the approximately 100 newspapers still carrying the once-ubiquitous column. He is marketing it after longtime distributor United Feature Syndicate announced the column's demise. Cohn likens his situation to Anderson's fight to keep the column after the death of its founder, Drew Pearson.
The McLean businessman, who is president of a software company, obtained the elder Anderson's signature on a document that he contends signed over the column to him. Kevin Anderson says the signature was "coerced" and provided a document showing he has power of attorney for his father.
Cohn blames the dispute in part on "political differences" between himself and Anderson's more conservative family. But Kevin Anderson says he and his eight siblings have a broad range of views. Clift says she has been the column's "ghostwriter" and would like to continue its "proud tradition" if the battle can be resolved.
Asked if it was hard to abandon the column, Anderson says: "Of course. It's been my life."
Doping Up the Paper
The subject: Olympic athletes using drugs. The headline: "How They Will Cheat." The illustration: a bulked-up figure with a dark complexion.
All of which was a dangerous combination for the Miami Herald, which is why Editor Tom Fiedler killed the paper's Tropical Life section last Tuesday.
The juxtaposition "could have been perceived by readers as being racially insensitive," Fiedler told the Associated Press.