Opening Argument – Should Reporters Go to Jail for Doing Their Jobs?

National Journal

This headline might seem to load the dice, in favor of creating a special privilege for us journalists to defy grand jury subpoenas demanding the names of our sources. But it really is that simple: Judith Miller, of The New York Times, and Matthew Cooper, of Time, will go to jail for contempt of court for as long as 18 months for refusing to betray their sources unless they win what look like uphill battles on appeal. Neither has done anything wrong or done anyone harm. Indeed, Miller wrote nothing at all about the matter in contention. Yet both face incarceration for honoring what any decent journalist would consider a cardinal professional and moral obligation. So do other reporters around the country who face a rising tide of prosecutorial demands for sources’ names. 

I am generally unsympathetic to news media claims of specially privileged status. I don’t buy the notion that pervasive regulation of political speech should be imposed upon everyone but us journalists in the name of campaign finance reform, for example. But Miller and Cooper seek no more than the legal protection already available to other vocational groups who must make and keep promises of confidentiality to do their jobs well: lawyers, clergy members, doctors, psychologists, and licensed social workers, not to mention spouses. And our government and other institutions will become far less open and accountable if whistle-blowers come to fear that reporters might be forced to turn them in.

These considerations have been obscured by the highly unusual circumstances of the investigation into the now-famous Bush administration leak of a CIA agent’s name to a pro-Bush columnist, Robert Novak. The facts cast a superficially beguiling light on the case for forcing reporters to testify: The leakers were not anonymous whistle-blowers, but rather powerful officials. Their motives were at best self-serving and at worst criminal: seeking to discredit, or even to harass, a self-identified whistle-blower, Joseph Wilson. The leak may have compromised the effectiveness of a covert CIA official (Wilson’s wife, Valerie Plame). It might conceivably have endangered the lives of her covert contacts overseas. And Patrick Fitzgerald, the Justice Department special counsel investigating the leaks, is also only doing his job, although (in my view) with the excess of zeal that seems characteristic of single-case independent prosecutors.

Fitzgerald has persuaded a first-rate federal district judge, Thomas Hogan of the District of Columbia, that neither the First Amendment nor the common law gives reporters any privilege to hide their sources’ names from grand juries. That’s what the Supreme Court held 32 years ago, by 5-4, in Branzburg v. Hayes. And while many lower courts have ruled that the interest in protecting journalists’ sources outweighs the need for disclosure in some cases, almost none of those cases have involved criminal grand jury investigations. Judge Hogan has also ruled — more debatably — that even if a "qualified" reporter-source privilege existed, it would be overridden on the facts of this case by the need for reporters’ testimony to provide evidence that is unavailable from other sources to prove whether or not officials have committed crimes. (These could include perjuries and other cover-up crimes, which would be prosecutable even if the leaking of Plame’s name is not.)

For those who tuned in late to the Novak-Wilson-Plame drama: On July 6, 2003, Wilson, a flamboyant former diplomat whom the CIA had sent to Niger 17 months earlier to look into suspected Iraqi activities there, claimed in an op-ed that President Bush had misled the world when he suggested that Iraq had sought to buy uranium in Africa. Eight days later, Novak wrote that Wilson’s "wife, Valerie Plame, is an agency operative on weapons of mass destruction" who "suggested sending Wilson to Niger." Novak cited "two senior administration officials" as his sources. Two top White House officials also called at least five other journalists with similar information, according to news reports. Their apparent motive was to discredit Wilson as a non-expert who got the Niger trip through his wife. Some even suspect the White House of deliberately blowing Plame’s cover to punish Wilson and intimidate others.

If the leakers (or others who directed the leaks) knew that Plame, who was a CIA analyst at the time, had worked undercover abroad within the past five years and that her identity was still classified, they may have committed a criminal violation of the Intelligence Identities Protection Act of 1982. It generally exempts journalists from prosecution for publishing names of covert agents, but not from being ordered to reveal their sources.

News organizations that are not usually into exposing leakers joined Democrats in a justifiable clamor for a no-holds-barred investigation of this leak, by a special counsel functionally independent of Attorney General John Ashcroft. They got what they asked for, and then some, with the appointment of Fitzgerald, the highly touted U.S. attorney in Chicago. He spent months interviewing White House officials, including President Bush and Vice President Cheney, who hired criminal defense lawyers, and he hauled many officials before a grand jury to testify under oath.

And in recent months, Fitzgerald has demanded evidence from at least five journalists who interviewed officials about Plame: Miller, Cooper, NBC’s Tim Russert, and The Washington Post’s Glenn Kessler and Walter Pincus. Novak won’t say whether Fitzgerald has questioned him. All of the others except Miller have provided limited information about top Cheney aide Lewis (Scooter) Libby, who released them from their pledges of confidentiality after he and other officials had been pressured by Fitzgerald to sign waivers urging reporters not to "assert any privilege or refuse to answer any questions … on my behalf or for my benefit."

Meanwhile, in an unrelated investigation, the same Fitzgerald is seeking information from the same Miller, her Times colleague Philip Shenon, and their phone company. In yet another case, a civil lawsuit by atomic scientist Wen Ho Lee, several other reporters have been held in contempt for refusing to name their sources. In Rhode Island, a television reporter has been held in contempt for refusing to name the source of a surveillance tape.

So, after decades during which grand jury subpoenas of reporters were almost unheard-of, "the level of risk to journalists who report on governmental affairs and require confidential sources to provide them information is greater today than at any time in my lifetime," says Floyd Abrams, who has been the nation’s most prominent First Amendment lawyer for almost half of his 68 years and who now represents both Miller and Cooper.

The best way to stop this dangerous trend would be for the Supreme Court to overrule Branzburg. Unlikely. It could also tack around that 1972 precedent by invoking the power delegated by Congress to the federal courts in 1975, in the Federal Rules of Evidence, to adopt common-law testimonial privileges and develop new ones over time "in the light of reason and experience." The Supreme Court did just that in 1996, in Jaffee v. Redmond, by creating a new privilege shielding communications between psychotherapists — licensed social workers as well as psychiatrists and psychologists — and their clients. The case for recognizing a reporter-source privilege is at least as strong. That’s why, in the 32 years since Branzburg, the Justice Department has adopted (in 1980) internal guidelines stressing the importance of "protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news-gathering function." That’s why some 29 states and the District of Columbia have enacted "shield" laws and most other states have adopted a reporter-source privilege via judicial decision, as have most European nations. This privilege is virtually absolute, like the attorney-client privilege, in some jurisdictions, and "qualified" in others, where judges balance the interest in confidentiality against the need for evidence on a case-by-case basis.

A qualified privilege might not save Miller or Cooper, given Judge Hogan’s decision that Fitzgerald "would be able to meet even the most stringent of balancing tests." Citing grand jury secrecy, Hogan has refused to let Abrams or the public see the prosecutor’s supporting evidence. In any event, a testimonial privilege so weak as to be balanced away in this case is too flimsy.

Judges would never dream of forcing a fellow lawyer to disclose a client’s confidences. Not even when the client is a terrorist mass-murderer or a corporation guilty of recklessly endangering customers or stealing from shareholders. Not even when the lawyer is paid millions to hide the truth. When Miller’s and Cooper’s appeals reach the Supreme Court, the justices should ask themselves this: Should we be jailing members of another profession for honoring promises of confidentiality that they make in order to expose the truth?