The Supreme Court refused yesterday to hear an appeal from two reporters who say they should not be forced to reveal their confidential sources to a prosecutor investigating whether senior Bush administration officials illegally leaked a covert CIA operative's name.
The high court's order leaves New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper facing jail time. They may have to surrender to authorities within weeks if they continue to refuse to answer questions before a grand jury.
Both have declined for more than a year to identify confidential sources they spoke with in the summer of 2003 about government efforts to discredit a high-profile critic of President Bush's argument for going to war with Iraq: former ambassador Joseph C. Wilson IV, the husband of CIA operative Valerie Plame. The reporters could face as little as one month in jail or as much as 18 months.
They argued that they could not do their jobs if they broke their promise of anonymity to sources who provided a look inside an increasingly secretive government. Special prosecutor Patrick J. Fitzgerald argued that he could not investigate crimes if reporters had a special right to hide information that other citizens did not.
With their appeals almost exhausted, the reporters will ask a federal trial judge to reconsider his decision last year to find them in civil contempt and order their imprisonment. But many legal experts agree it is highly unlikely that Chief U.S. District Judge Thomas F. Hogan will change his mind -- or his legal conclusion -- that a prosecutor's search for the truth in a criminal investigation outweighs a reporter's need to protect anonymous sources.
"It is shocking that for doing some routine newsgathering on an important public issue, keeping her word to her sources, and without our even publishing a story about the CIA agent, Judy finds herself facing a prison sentence," Arthur Ochs Sulzberger Jr., chairman of the New York Times Co., said in a statement.
Time magazine released a statement saying that Hogan should reconsider jail time because Fitzgerald's investigation has "changed substantially." It appears that the prosecutor has concluded that the crime he was originally investigating did not occur, Time contended, because government officials did not realize they were revealing the name of an undercover agent. To commit a crime, an official must knowingly disclose an undercover agent's identity.
Now, Time said, Fitzgerald appears to be investigating whether an official lied during his investigation. "Such an investigation of obstruction of justice or perjury may not rise to the level that justifies disclosure of information from or about a reporter's confidential sources under federal common law," Time's statement said.
Fitzgerald issued a statement saying he is eager to move ahead. "Now that the legal obligations of the reporters are settled and all appeals exhausted, we look forward to resuming our progress in this investigation and bringing it to a prompt conclusion on behalf of the citizens we represent," he said.
The case began when Plame's name appeared in a July 14, 2003, syndicated column by Robert D. Novak weeks after her husband, former ambassador Wilson, 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 there for use in nuclear weapons. After returning, Wilson alleged that Bush had exaggerated that evidence to justify going to war with Iraq.
Novak reported that two unnamed administration officials had told him that Wilson's wife was a CIA "operative" and had helped arrange her husband's trip to Niger.
Cooper wrote one article raising questions about government officials trying to discredit Wilson behind the scenes. Miller did some reporting but never wrote a story.
Fitzgerald was appointed in the fall of 2003 to determine whether senior administration officials broke the law by knowingly revealing Plame's name and undercover status to the media. Doing so is a violation of the Intelligence Identities Protection Act and is punishable by as much as 10 years in prison.
Federal and appellate court rulings in favor of Fitzgerald are based on a 1972 Supreme Court decision, Branzburg v. Hayes, which the reporters asked the high court to reexamine. Fitzgerald, in urging the high court to reject the reporters' requests for protection, wrote that by the fall of 2004 his investigation "was for all practical purposes complete except for the testimony of Miller and Cooper."
The special prosecutor's aggressive pursuit of the reporters has drawn outrage from media organizations and free press and public advocacy groups. A bipartisan group of 34 state attorneys general wrote a brief on their behalf contending that the public value of information provided by anonymous sources outweighs the value of the information Miller and Cooper could provide prosecutors.
It is unclear how long the two reporters would be detained because of secrecy surrounding grand jury proceedings. Hogan originally ordered the reporters to spend 18 months in jail or the remainder of the grand jury session, whichever was less. The grand jury session ended in May, according to sources, but was extended. The reporters would presumably have to serve whatever time is left in the extended session -- as little as a single month but perhaps much longer.