This obviously has significant and very large legal implications as well as practical ramifications for today's reporters.

Reporters Must Testify in Plame Case, Court Rules

By Carol D. Leonnig

Washington Post Staff Writer
Tuesday, February 15, 2005; 11:50 AM

A New York Times reporter and a Time magazine reporter can be jailed if they continue to refuse to answer questions before a grand jury about their confidential conversations with government sources, a federal appeals court decided this morning.

The decision upholds a trial court judge's ruling last year that Judith Miller of the New York Times and Matthew Cooper of Time magazine should be forced to answer these questions or be sent to jail. Both reporters fought to stop a subpoena from the Special Counsel to appear before a grand jury investigating whether senior Bush administration officials knowingly leaked the identity of Valerie Plame, a covert operative, to the media in the summer of 2003.

Lawyers said both the New York Times and Time magazine will seek a stay of the decision, to avoid having their reporters go to jail, while they appeal to the full appeals court and likely to the Supreme Court. But that request for a stay would have to be granted by Chief U.S. District Judge Thomas F. Hogan, who first held Miller and Cooper in contempt of court and ruled they must obey the subpoena.

The three-judge panel of the U.S. Court of Appeals in Washington rejected the contention that the First Amendment protects the information being concealed by the journalists, saying that a 1972 U.S. Supreme Court decision said just the opposite.

The judges also found there is no common law protection for journalists' confidential sources when a criminal investigation seeks to determine if a law has been broken and information about those sources is critical to that inquiry.

"We further conclude that if any such common law privilege exists, it is not absolute, and in this case has been overcome by the filings of the Special Counsel," the panel wrote.

Judge David B. Sentelle wrote the opinion. Judges Karen Lecraft Henderson and David S. Tatel concurred.

They cited the Supreme Court's 1972 decision in the Branzburg case which found that a Kentucky reporter who witnessed and wrote about a drug-manufacturing ring had to answer questions about his confidential sources when a grand jury began investigating possible related drug crimes.

The panel's decision is the first time in 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.

Lawyers for media organizations say the law on protecting reporters from subpoenas in criminal matters is very weak, and they had expected the appeals court to rule against the reporters. The expressed concern that the decision will drive confidential sources underground -- and leave the public more in the dark about the inner workings of its government.

"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," New York Times publisher Arthur 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.

"The protection of confidential sources was critically important to many groundbreaking stories, such as Watergate, the health-threatening practices of the tobacco industry and police corruption. The Times will continue to fight for the ability of journalists to provide the people of this nation with the essential information they need to evaluate issues affecting our country and the world. And we will challenge today's decision and advocate for a federal shield law that will enable the public to continue to learn about matters that directly affect their lives."

Even the judge on the panel most supportive of applying a balancing test -- to determine the value of forcing reporters to discuss or identify confidential sources -- said the government had the advantage in this case.

Tatel wrote that the purpose of the 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 its 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, " wrote Tatel.

The case grows out of special prosecutor Patrick Fitzgerald's investigation centering on administration contacts with the media in the summer of 2003. That was when Plame's husband, former U.S. ambassador Joseph C. Wilson IV, published an opinion piece saying he had led a special mission to Niger to determine whether Iraq had sought to obtain nuclear material there and complained that the Bush administration had exaggerated intelligence to justify a war with Iraq.

On July 14, 2003, syndicated columnist Robert D. Novak was the first to identify Plame as a CIA operative, and he quoted administration sources as saying she had recommended her husband for the mission.