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Reporters should be shielded from jail

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When three federal appeals court judges ruled this week that Judith Miller of the New York Times and Time magazine’s Matthew Cooper can be jailed for refusing to reveal the names of confidential sources to a grand jury, they did more than acquiesce in the Justice Department’s attempt to intimidate two reporters.

By refusing to recognize evolving legal standards as reflected in the decisions of 45 states and the District of Columbia to shield journalists from such coercion through the extension of at least a qualified privilege, the appellate judges essentially looked the other way as overreaching authority tightens its cold hand around the throat of American democracy. They also made it all the more urgent that Congress move as quickly as possible to enact a federal “shield law” that would protect other reporters from being forced to choose between jail and betrayal of the public trust.

Republican Sen. Richard Lugar of Indiana already has introduced such a measure in the Senate and Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) are the bipartisan sponsors of a similar bill in the House. Both would extend absolute protection against subpoenas for confidential sources, such as those Miller and Cooper are fighting.

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Miller and Cooper were held in contempt for refusing to name names before a federal grand jury investigating what may have been the illegal release of a covert CIA agent’s identity. The sequence of events began two years ago when former U.S. diplomat Joseph C. Wilson IV published an op-ed piece in the New York Times criticizing President Bush’s assertion in his January 2003 State of the Union address that Iraq had attempted to purchase nuclear material mined in West Africa. Wilson’s wife, Valerie Plame, was then an intelligence agent working undercover.

A week later, syndicated columnist Robert Novak wrote that “two senior administration officials” had told him that Plame was “an agency operative on weapons of mass destruction.” Three days later, Cooper and two other Time reporters posted an article on the magazine’s website reporting that they had received similar information and speculating about the Bush administration’s motives for its release. Miller, who also apparently was a recipient of the leak, did some reporting on the issue but never wrote a story -- a fact that lends a particularly Kafkaesque dimension to her persecution.

Neither Novak nor Patrick J. Fitzgerald, the special federal prosecutor conducting the case, will say whether the columnist has been subpoenaed or has answered questions. Miller and Cooper were subpoenaed and, when they refused to reveal their sources, were cited for contempt and sentenced by Judge Thomas F. Hogan to as much as 18 months in jail. (Fitzgerald, who seems to have an insatiable appetite for turning reporters into snitches, also is seeking to seize Miller’s phone records in another, unrelated, federal fishing expedition.)

Executives at the New York Times and at Time said they intend to appeal this week’s ruling to the U.S. Supreme Court, if necessary, and to push for legislative protections that should long ago have been enacted. Their efforts deserve the broadest possible support because what is being played out here is neither special pleading nor -- as some particularly obtuse commentators have characterized it -- institutional disrespect for the rule of law. Precisely the opposite is the case. Journalists do not gather or report information merely to satisfy their own curiosity or for their employer’s profit. They do so as surrogate stewards of the people’s right to speak and publish as they choose. The existence of a free press going about its responsibilities unfettered by governmental intrusion is the practical vindication of the individual’s constitutional liberties.

Preventing abuse of power

Without the daily reality of a free press, the 1st Amendment, like the rest of the Bill of Rights, becomes little more than a moral promissory note to be redeemed in some distant and idealized future.

To insist upon this fact, as Miller and Cooper are doing at such potential cost to themselves, is not to hold journalists for the press above the law. Their position, in fact, is a demand that this administration and the current crop of federal judges acknowledge the authority of mainstream judicial thinking and popular sovereignty stretching back over decades.

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In its 1964 landmark libel decision in New York Times vs. Sullivan, for example, the U.S. Supreme Court noted that the press “serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials as the constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were elected to serve.”

In the 1984 case of Zerilli vs. Smith, the same federal appeals court that this week sanctioned the jailing of Miller and Cooper held that unimpeded “news gathering is essential to a free press,” which is “protected so that it could bare the secrets of government and inform the people. Without an unfettered press, citizens would be far less able to make informed political, social and economic choices. But the press’ function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired.”

In that same ruling, the judges acknowledged the indispensability of confidential sources to certain forms of news gathering. “Compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability,” the judges wrote, because “journalists frequently depend on informants to gather the news, and confidentiality is often essential to establishing a relationship with an informant.”

To find otherwise, as they did this week, the appeals court judges had to rely on a breathtakingly reductionist reading of the U.S. Supreme Court’s 1972 ruling in Branzburg vs. Hayes, which held that, in the absence of legislation to the contrary, there was no absolute 1st Amendment obstacle to compelling journalists to testify before grand juries. Since then, decades of judicial precedent, such as that cited above, have relied on Justice Lewis Powell’s separate, but concurring opinion in Branzburg, which clearly sought to limit the decision’s reach.

Powell, moreover, wrote that “the court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources.” Indeed, the plurality of justices who decided the Branzburg case noted that, “Congress has freedom to determine whether a statutory newsman’s privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned and, equally important, to refashion those rules as experience may, from time to time, dictate.”

As Judith Miller and Matthew Cooper face jail for the crime of going about the American people’s constitutional business, it’s difficult not to see this as such a time.

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Victoria Toensing, former chief counsel to the Senate Intelligence Committee and deputy assistant attorney general in the Reagan administration, and Bruce Sanford, now a leading 1st Amendment lawyer, helped draft the federal statute under which Fitzgerald now is conducting his investigation. They recently described his inquiry as “a mechanical investigation in which there is serious doubt that a crime was even committed. Federal courts have stated that a reporter should not be subpoenaed when the testimony sought is remote from criminal conduct or when there is no compelling ‘government interest,’ i.e., no crime. As two people who drafted and negotiated the scope of the 1982 Intelligence Identities Protection Act, we can tell you: The Novak column and the surrounding facts do not support evidence of criminal conduct.”

Experience, as Justice Holmes famously observed, is the life of the law. The chilling experience of capricious prosecutorial overreaching -- such as that to which Judith Miller and Matthew Cooper are being subjected -- is precisely what led 45 states, including California and New York, to legally protect journalists in their situation.

It will be a bleak and shameful day if Miller and Cooper have to go to jail to prod Congress into doing the same.

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