Supreme Court Declines to Hear Reporters' Leak Case Appeal

There is something terribly wrong when two reporters, one of whom didn't even write a story about the leak, may be going to prison for eighteen months while that bottom feeder journalist, Robert Novak, who actually outed the CIA agent as a front for a Bush administration official in violation of the law, remains free.

BBB

June 27, 2005
Supreme Court Declines to Hear Reporters' Appeal in Leak Case
By ADAM LIPTAK
New York Times

The United States Supreme Court declined today to hear the cases of two reporters facing jail time for refusing to testify about conversations with their confidential sources.

The case now returns to the federal district court in Washington, where its chief judge, Thomas F. Hogan, is expected to hear arguments this week about when and where the reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, will begin to serve their time.

The special prosecutor in the case, Patrick J. Fitzgerald, is likely to ask that the reporters be jailed immediately. Lawyers for the reporters may ask Judge Hogan for permission to file additional briefs.

"I am extremely disappointed," Ms. Miller said in a statement. "Journalists simply cannot do their jobs without being able to commit to sources that they won't be identified. Such protection is critical to the free flow of information in a democracy."

Arthur Sulzberger Jr., the publisher of The New York Times, added: "It is shocking that for doing some routine newsgathering on an important public issue, keeping her word to her sources, and without our even publishing a story about the C.I.A. agent, Judy finds herself facing a prison sentence.

"That 49 states and many countries around the globe provide broad protection for journalists who have promised confidentiality to their sources, makes today's decision even more disappointing. And it is doubly painful that the court rejected our case in the face of the plea of 34 state attorneys general, prosecutors who normally seek journalists' evidence, that anonymous sources are critical to provide information to the public."

Time Inc. issued a statement suggesting that it had not come to a final decision about whether to comply with the court orders in the case.

"We think it premature for Time Inc. and Matt Cooper to articulate final positions until Judge Hogan has ruled on our request for review and reassessment," the statement said.

Judge Hogan held the reporters in civil contempt in October for refusing to cooperate in a grand jury's investigation of the disclosure of the identity of a covert C.I.A. agent, Valerie Plame.

He ordered them held for 18 months or until the grand jury completes its inquiry, whichever comes sooner. He also ordered Time magazine to pay a fine of $1,000 a day for refusing to turn over related documents.

The reporters have remained free during their appeals. In court filings this spring, Mr. Fitzgerald disclosed that, except for his efforts to compel the reporters' testimony, his investigation has been "for all practical purposes complete" since October.

Time's lawyers will rely on that disclosure to try to reargue the case before Judge Hogan, the Time Inc. statement said.

"We believe that changes in the status of the special prosecutor's investigation and intervening guidance from the court of appeals on evidentiary privileges under federal common law merit such a reassessment," the statement said.

"There is reason to believe, for example, that the special counsel may have determined that disclosure of Valerie Plame's identity to Robert Novak did not violate the Intelligence Identities Protection Act," the statement continued. "If that is correct, his desire to know the sources for a subsequent article by Mr. Cooper and others, that appeared on Time.com, may be solely related to an investigation into whether witnesses made false statements during the course of his investigation into this non-crime. Such an investigation of obstruction of justice or perjury may not rise to the level that justifies disclosure of information from or about a reporter's confidential sources under federal common law."

Civil contempt is meant to coerce rather than punish. If the reporters agree to talk, they will be freed.

The federal regulations governing civil contempt suggest that the local jail, in this case that of the District of Columbia, is the default facility. The United States Marshals Service, which has primary responsibility for supervising people held in civil contempt in federal cases, may choose another facility "due to medical, security or other reasons." Judge Hogan is also free to specify a different place of incarceration.

Lawyers for the reporters are likely to propose home confinement or a federal facility other than the District of Columbia jail.

A Rhode Island television reporter, Jim Taricani, was sentenced to six months of home confinement in December for refusing to disclose the identity of the person who gave him a videotape that was evidence in an investigation of government corruption in Providence. He was released in April, after serving four months.

But Mr. Taricani was a heart-transplant recipient. And he had been held in criminal contempt, meaning his sentence was meant to be punitive. Home confinement in a civil contempt case might not be considered adequately coercive.

The case against the reporters arose from the publication of the identity of Ms. Plame's identity by the syndicated columnist Robert Novak, who said "two senior administration officials" had told him the information. It can be a crime for government officials to disclose such facts.

Even as Ms. Miller and Mr. Cooper prepare for jail, Mr. Novak remains free. Neither he nor Mr. Fitzgerald will say why that is so.

Other aspects of the case remain shrouded in secrecy as well. Mr. Fitzgerald appears to assert that Mr. Cooper, who wrote about Ms. Plame after the Novak column, and Ms. Miller, who never wrote on the subject, have information that may point to criminal conduct by a government official.

A 1972 decision of the Supreme Court, Branzburg v. Hayes, held that the First Amendment does not allow reporters to refuse to discuss their confidential sources in the face of grand jury subpoenas.

Today's order means the Supreme Court will not revisit that decision for now.

It also means that the court will await another case to consider the existence and scope of a protection arising from the federal common law governing evidentiary privileges like those for communications with lawyers and doctors.

Under a rule of evidence adopted by Congress in 1975, federal courts are authorized to recognize new privileges in light of "reason and experience."

The federal appeals court in Washington upheld Judge Hogan's contempt order in February. The three-judge panel split three ways over the question of whether courts should recognize a privilege under the federal common law, but all three judges agreed that Mr. Fitzgerald had provided secret evidence to the court sufficient to overcome any privilege that might exist.