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what really saddens me is this: they mention a single paragraph about Robert Novak, in this whole article. Novak has refused to divulge whether he has been subpoenaed by the court to testify regarding his government sources. doesn't that sound just a tad bit fishy, coming from one of the administration's lap dogs?
so the question is: why are Judith Miller and Matthew Cooper in jail and Rober Novak isn't? The reason he won't say whether he was subpoenaed or not, is because he wasn't. nevertheless, Novak was the only one to actually PUBLISH anything that revealed Valerie Plame's identity. Miller and Cooper never even finished their stories, but somehow are in comtempt of court.
now what is wrong with that picture?
Judges Order 2 Reporters to Testify on Leak
By Carol D. Leonnig
Washington Post Staff Writer
Wednesday, February 16, 2005; Page A01
Reporters at the New York Times and Time magazine may be jailed if they continue to refuse to answer questions before a grand jury about their confidential conversations with government sources regarding the leak of a covert CIA officer's identity, a federal appeals court ruled yesterday.
The decision upholds a trial court's finding last year that Judith Miller of the New York Times and Matthew Cooper of Time magazine are in contempt of court and should be compelled to testify as part of an investigation into whether Bush administration officials knowingly leaked the name of CIA operative Valerie Plame in the summer of 2003.
The unanimous opinion was an expected but still painful blow for the reporters, their news organizations, other media and advocates of free speech. The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled there is no First Amendment privilege that allows reporters to conceal information they gather from a criminal inquiry.
The 81-page ruling held out some hope for the media, with two judges suggesting that common law could shield journalists seeking to protect the identity of confidential sources in other situations.
The panel's decision is the first time in more than 30 years that a federal appeals court specifically addressed whether reporters can be forced to break their promise to unnamed sources when a prosecutor is trying to solve a crime.
Miller, 57, and Cooper, 42, have fought to quash subpoenas requiring them to answer questions from a special prosecutor. Plame's name first appeared in a July 14, 2003, syndicated column by Robert D. Novak, weeks after her husband, former ambassador Joseph C. Wilson IV, 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 for nuclear weapons. After returning, Wilson alleged that President Bush had exaggerated that evidence to justify going to war.
Novak's column said two unnamed administration officials had told him that Wilson's wife was a CIA "operative" and had helped arrange his trip to Niger.
A government official who knowingly identifies a covert operative could be in violation of the Intelligence Identities Protection Act. After a public uproar over the leak, the Justice Department appointed Special Counsel Patrick Fitzgerald to investigate.
According to the appellate court's opinion, Fitzgerald knows the identity of the person with whom Miller spoke and wants to question her about her contact with that "specified government official" on or about July 6, 2003. Miller never wrote a story on the subject.
In a statement, Fitzgerald said: "We look forward to resuming our progress in this investigation and bringing it to a prompt conclusion."
Prosecutors have questioned other journalists, including two from The Washington Post. Novak has refused to say whether he was subpoenaed to appear before the grand jury or has spoken with prosecutors.
Lawyers for the Times and Time said they will appeal the decision to the full appellate court and possibly to the Supreme Court and will seek a stay from the appellate court to keep the reporters out of jail while the case is pending.
Chief Judge Thomas F. Hogan found Miller and Cooper in contempt in October and had ordered the two detained for as long as 18 months or until the grand jury's term expires, whichever was shorter. The term is set to expire at the end of April but could be renewed.
"We are deeply dismayed at the U.S. Court of Appeals' decision to affirm holding Judith Miller in contempt, and at what it means for the American public's right to know," Times Publisher Arthur Ochs Sulzberger Jr. said in a statement. "If Judy is sent to jail for not revealing her confidential sources for an article that was never published, it would create a dangerous precedent that would erode the freedom of the press."
Reid Cox of the Center for Individual Freedom, which promotes access to information, said the decision will dry up reporters' access to sources and the public will suffer.
"Though we often say the public has a right to know, the press is the conduit for the public's knowledge," Cox said. "If reporters have to fear jail every time they get a confidential tip, we will all know less."
Twenty-five American journalists have been jailed over concealed sources and information since 1961. Freelance writer Vanessa Leggett, who in 2001 refused to divulge the sources of information in a book about a Texas man acquitted of hiring someone to kill his wife, served the longest sentence, 5 1/2 months.
In yesterday's ruling, the panel said the hope of Cooper and Miller to conceal information from Fitzgerald is similar to a Kentucky reporter's request in a criminal drug investigation in 1972. In that case, Branzburg v. Hayes, the Supreme Court ruled that the reporter, who witnessed members of a drug ring manufacturing hashish, could be compelled to reveal confidential sources crucial to solving the crime. The court found the First Amendment did not protect the journalist.
In that case, Judge David B. Sentelle wrote, "the Court stated that it could not 'seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source . . . on the theory that it is better to write about a crime than to do something about it.' "
But two of the three judges said federal common law might protect journalists in other cases. Judge David S. Tatel, in a 41-page concurring opinion, wrote that the sources could remain confidential, "were the leak at issue in this case less harmful to national security or more vital to public debate."
Judge Karen LeCraft Henderson wrote a third concurring opinion.
Law professors and media lawyers said the judicial division demonstrates the need to clarify the law regarding when a reporter can fairly promise confidentiality and the need for Congress to adopt a federal shield law for journalists.
The Newspaper Association of America and other media organizations are supporting legislation that would put into law the Justice Department's 30-year-old guidelines on when to seek information from reporters. The legislation would provide an absolute privilege to reporters seeking to protect confidential sources and a qualified privilege for other unpublished information.
The appellate panel, citing secret evidence Fitzgerald had presented to them, said this case was different from the classic uncovering of wrongdoing by reporters relying on unnamed sources. Tatel wrote that the purpose of these government leaks, based on a story that Cooper wrote in the summer of 2003, appeared to be to smear a person who alleged the Bush administration exaggerated the strength of evidence justifying going to war with Iraq.
"While requiring Cooper to testify may discourage future leaks, discouraging leaks of this kind is precisely what the public interest requires," Tatel wrote.
By Carol D. Leonnig
Washington Post Staff Writer
Wednesday, February 16, 2005; Page A01
Reporters at the New York Times and Time magazine may be jailed if they continue to refuse to answer questions before a grand jury about their confidential conversations with government sources regarding the leak of a covert CIA officer's identity, a federal appeals court ruled yesterday.
The decision upholds a trial court's finding last year that Judith Miller of the New York Times and Matthew Cooper of Time magazine are in contempt of court and should be compelled to testify as part of an investigation into whether Bush administration officials knowingly leaked the name of CIA operative Valerie Plame in the summer of 2003.
The unanimous opinion was an expected but still painful blow for the reporters, their news organizations, other media and advocates of free speech. The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled there is no First Amendment privilege that allows reporters to conceal information they gather from a criminal inquiry.
The 81-page ruling held out some hope for the media, with two judges suggesting that common law could shield journalists seeking to protect the identity of confidential sources in other situations.
The panel's decision is the first time in more than 30 years that a federal appeals court specifically addressed whether reporters can be forced to break their promise to unnamed sources when a prosecutor is trying to solve a crime.
Miller, 57, and Cooper, 42, have fought to quash subpoenas requiring them to answer questions from a special prosecutor. Plame's name first appeared in a July 14, 2003, syndicated column by Robert D. Novak, weeks after her husband, former ambassador Joseph C. Wilson IV, 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 for nuclear weapons. After returning, Wilson alleged that President Bush had exaggerated that evidence to justify going to war.
Novak's column said two unnamed administration officials had told him that Wilson's wife was a CIA "operative" and had helped arrange his trip to Niger.
A government official who knowingly identifies a covert operative could be in violation of the Intelligence Identities Protection Act. After a public uproar over the leak, the Justice Department appointed Special Counsel Patrick Fitzgerald to investigate.
According to the appellate court's opinion, Fitzgerald knows the identity of the person with whom Miller spoke and wants to question her about her contact with that "specified government official" on or about July 6, 2003. Miller never wrote a story on the subject.
In a statement, Fitzgerald said: "We look forward to resuming our progress in this investigation and bringing it to a prompt conclusion."
Prosecutors have questioned other journalists, including two from The Washington Post. Novak has refused to say whether he was subpoenaed to appear before the grand jury or has spoken with prosecutors.
Lawyers for the Times and Time said they will appeal the decision to the full appellate court and possibly to the Supreme Court and will seek a stay from the appellate court to keep the reporters out of jail while the case is pending.
Chief Judge Thomas F. Hogan found Miller and Cooper in contempt in October and had ordered the two detained for as long as 18 months or until the grand jury's term expires, whichever was shorter. The term is set to expire at the end of April but could be renewed.
"We are deeply dismayed at the U.S. Court of Appeals' decision to affirm holding Judith Miller in contempt, and at what it means for the American public's right to know," Times Publisher Arthur Ochs Sulzberger Jr. said in a statement. "If Judy is sent to jail for not revealing her confidential sources for an article that was never published, it would create a dangerous precedent that would erode the freedom of the press."
Reid Cox of the Center for Individual Freedom, which promotes access to information, said the decision will dry up reporters' access to sources and the public will suffer.
"Though we often say the public has a right to know, the press is the conduit for the public's knowledge," Cox said. "If reporters have to fear jail every time they get a confidential tip, we will all know less."
Twenty-five American journalists have been jailed over concealed sources and information since 1961. Freelance writer Vanessa Leggett, who in 2001 refused to divulge the sources of information in a book about a Texas man acquitted of hiring someone to kill his wife, served the longest sentence, 5 1/2 months.
In yesterday's ruling, the panel said the hope of Cooper and Miller to conceal information from Fitzgerald is similar to a Kentucky reporter's request in a criminal drug investigation in 1972. In that case, Branzburg v. Hayes, the Supreme Court ruled that the reporter, who witnessed members of a drug ring manufacturing hashish, could be compelled to reveal confidential sources crucial to solving the crime. The court found the First Amendment did not protect the journalist.
In that case, Judge David B. Sentelle wrote, "the Court stated that it could not 'seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source . . . on the theory that it is better to write about a crime than to do something about it.' "
But two of the three judges said federal common law might protect journalists in other cases. Judge David S. Tatel, in a 41-page concurring opinion, wrote that the sources could remain confidential, "were the leak at issue in this case less harmful to national security or more vital to public debate."
Judge Karen LeCraft Henderson wrote a third concurring opinion.
Law professors and media lawyers said the judicial division demonstrates the need to clarify the law regarding when a reporter can fairly promise confidentiality and the need for Congress to adopt a federal shield law for journalists.
The Newspaper Association of America and other media organizations are supporting legislation that would put into law the Justice Department's 30-year-old guidelines on when to seek information from reporters. The legislation would provide an absolute privilege to reporters seeking to protect confidential sources and a qualified privilege for other unpublished information.
The appellate panel, citing secret evidence Fitzgerald had presented to them, said this case was different from the classic uncovering of wrongdoing by reporters relying on unnamed sources. Tatel wrote that the purpose of these government leaks, based on a story that Cooper wrote in the summer of 2003, appeared to be to smear a person who alleged the Bush administration exaggerated the strength of evidence justifying going to war with Iraq.
"While requiring Cooper to testify may discourage future leaks, discouraging leaks of this kind is precisely what the public interest requires," Tatel wrote.
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