Judges Say Reporters Must Name Sources in CIA Case

Times Staff Writers

News reporters do not have a 1st Amendment right to refuse to testify about their conversations with government officials, a three-judge panel of a U.S. appeals court said Tuesday, upholding a judge’s order that could put reporters from Time magazine and the New York Times in jail.

The decision by the panel of the U.S. Court of Appeals for the District of Columbia, the most recent to threaten reporters with imprisonment, seems likely to accelerate congressional efforts to pass a “shield” law allowing reporters to keep the identities of their sources secret.

Matthew Cooper of Time and Judith Miller of the New York Times face contempt of court charges for refusing to tell prosecutors about their confidential talks with officials in the Bush White House who revealed the identity of a CIA operative in 2003.

The appeals court panel, in a 3-0 ruling, held that the constitutional protection of freedom of the press does not give reporters an “exemption from an ordinary duty of all citizens to furnish relevant information to a grand jury.”


Floyd Abrams, the attorney for both reporters, said he would ask the full appeals court to reverse Tuesday’s ruling. He previously has said the reporters would appeal to the U.S. Supreme Court if necessary.

Press advocates said that they could not remember a time in the last 30 years when so many journalists have faced court orders and the threat of jail -- in cases including the Major League Baseball steroid scandal, the investigation of the 2001 anthrax attacks and a City Hall corruption case in Providence, R.I.

The cases appear to be creating unusual solidarity among the media and some Washington lawmakers on the need for a law to protect journalists.

Members of the House and Senate recently introduced identical measures that would give reporters absolute protection against the forced disclosure of confidential news sources. After three decades of halting discussion about such a privilege -- dating back to the Watergate era -- the legislation has won initial support across the ideological spectrum.

“I think the issue surrounding freedom of the press transcends arguments over the ideology or the competence of present-day media,” said Rep. Mike Pence (R-Ind.), co-sponsor of the legislation and chairman of the House’s conservative Republican Study Committee. “Americans love to hate journalists almost as much as they love to hate politicians. But we are united in our understanding that a free and independent press is central to the survival of liberty.”

Tuesday’s appellate panel decision helped reinforce that idea, said Sandra Baron, executive director of the Media Law Resource Center, which advocates on behalf of news outlets. “This decision makes it perfectly clear that this bill is critically needed to provide for a free flow of information to the press and to the American people,” Baron said.

Two of the three judges said in separate opinions that it might be up to Congress or the Supreme Court to decide whether there should be a privilege for news reporters similar to the ones in the law that protect the communications that doctors and lawyers have with their clients.

Others have argued against special treatment for journalists. The media are in an awkward position in the CIA case -- essentially asking for special protection “to conceal what members of the government may be doing in the commission of the crime,” 1st Amendment attorney Bruce Fein said.

Pointing to Watergate, the Iran-Contra investigation of the Reagan administration and the Whitewater probe of President Clinton, Fein argued that the press has proved it does not need protections to get information from confidential sources.

“The incentive of the source to talk is so overwhelming,” Fein said, “regardless of the remote threat of their identity being disclosed, the source will talk anyway.”

The case now involving Miller and Cooper surfaced in July 2003, when retired American diplomat Joseph C. Wilson IV wrote a newspaper column accusing President Bush of “misrepresenting the facts” when he suggested Saddam Hussein had sought uranium in Africa for use in nuclear weapons. Wilson based his comments on his personal investigation in Niger.

In response, conservative columnist Robert Novak reported that “two senior administration officials” had told him it was Wilson’s wife, CIA operative Valerie Plame, who pressed to have her husband sent on the uranium investigation.

Since it can be a crime to knowingly reveal the name of an undercover CIA agent, then-Atty. Gen. John Ashcroft named a special prosecutor to consider whether White House aides broke the law. Some viewed the disclosure as retaliation for Wilson’s stand against Bush.

Special prosecutor Patrick J. Fitzgerald received the backing of a district court judge in demanding that the reporters reveal who talked to them about Plame. Novak has not revealed whether he was subpoenaed.

American courts have recognized that lawyers may protect the secrets of their clients. A wife may refuse to testify about her husband, and psychotherapists may refuse to disclose what patients have told them in private.

But the law has been less uniform in protecting communications between journalists and their sources. In a 1972 decision, the Supreme Court ruled that a reporter can be called to testify before a grand jury about confidential information, but a majority of justices appeared to open the door to the concept of a special protection for the press.

California, 30 other states and the District of Columbia have created shield laws guarding at least some of the communications.

But those laws have not prevented state and, particularly, federal judges from issuing a series of rulings seeking to get reporters to disclose who gave them information:

* In December, a federal judge sentenced Providence television reporter Jim Taricani to six months of home confinement for contempt after the newsman refused to divulge who had leaked to him a videotape of a city official taking a bribe from an undercover FBI informant. The sentence remained in place, even after a lawyer was found to be the source of the leak.

* In August, a judge found five reporters -- including Bob Drogin of the Los Angeles Times -- in contempt and subject to $500 a day in fines for refusing to say who in the government gave them information about Wen Ho Lee, the former nuclear physicist at Los Alamos National Laboratory in New Mexico. Lee, once suspected but never charged with espionage, had sued the government for revealing confidential information about him. The reporters have appealed the contempt finding.

* Beginning last summer, federal prosecutors asked three reporters at the San Francisco Chronicle and two at the San Jose Mercury News to reveal who had leaked information about the grand jury investigation into illegal steroid distribution by Bay Area Laboratory Co-Operative, or BALCO. Chronicle reporters Lance Williams and Mark Fainaru-Wada -- who have led the way with reports on apparent steroid use by major league baseball players Barry Bonds and Jason Giambi -- worry that subpoenas and the threat of jail may still be in the offing.

The reporters have reiterated their intention never to disclose the identity of their sources. But Williams said reporting the story has become “much tougher” since sources have learned that he is being pressured to give up their names.

Facing the prospect of up to 18 months in jail after Tuesday’s ruling, the reporters in the Plame case said they had no intention of revealing their sources.

Cooper acknowledged that the prospect has become more unsettling because he has a 6-year-old son. He reported on the Plame controversy as a White House correspondent for Time magazine.

Miller noted in an interview with CNN that the case had a particularly Orwellian twist because she never wrote a story about Plame.

Nonetheless, the New York Times reporter said: “I have to be willing to go to prison. I think the principles at stake in this case are so important to the functioning of a free press and to the confidentiality of sources that I just have to be willing to do that.”

Savage reported from Washington and Rainey from Los Angeles.