When unnamed Bush administration officials gave the name of CIA official Valerie Plame to syndicated columnist Robert D. Novak 15 months ago, many in the news media decried what they saw as the possibly illegal "outing" of a secret operative in reprisal for criticism of the administration by her husband, former ambassador Joseph C. Wilson IV.
What they did not foresee was that the investigation of this alleged crime would end up targeting the press.
Two reporters, Matthew Cooper of Time magazine and Judith Miller of the New York Times -- neither of whom had anything to do with the leak to Novak -- now face as much as 18 months in jail for refusing a court order to testify about their contacts with confidential sources related to the Plame story.
Less protection under federal law
The U.S. Court of Appeals for the District of Columbia Circuit will hear Cooper and Miller's appeal on Dec. 8. The ultimate result is in doubt, but for now their cases demonstrate an uncomfortable fact of life for Washington reporters: The symbiotic relationship between journalists and confidential sources enjoys less protection under federal law than it does in most states.
"I understand the desire to have a reporter privilege," said Geoffrey R. Stone, a professor of law at the University of Chicago who specializes in First Amendment issues. "The problem is that there isn't a privilege currently existing that's applicable to this situation -- yet they have gone around giving people promises of confidentiality."
The Miller and Cooper cases follow that of Providence, R.I., television reporter Jim Taricani, who was convicted of contempt last week for refusing to reveal who illegally leaked him an FBI surveillance tape of payoffs to a former City Hall official; he faces as much as six months in jail. Five other reporters are appealing contempt citations over their refusal to testify about their confidential sources in a federal invasion-of-privacy lawsuit brought by former nuclear weapons scientist Wen Ho Lee.
The basic argument in favor of legal protection for a reporter's pledge of confidentiality is that the public interest is served by making sure that whistle-blowers can take their tales of official wrongdoing to the news media without fear of reprisal.
State 'shield laws'
In 49 of the 50 states, plus the District, that argument has carried the day, and a reporter's privilege of some kind has been recognized either by a "shield law" or by a court decision.
Some federal appeals courts have also recognized such a privilege in federal lawsuits brought by private parties.
However, the counterargument is that reporters, no less than other citizens, have a duty to tell the authorities about criminal conduct they may have witnessed.
And that persuaded five members of the Supreme Court when it ruled in 1972, in Branzburg v. Hayes, that the First Amendment does not protect journalists from being subpoenaed by a federal grand jury.
Justice Byron R. White wrote that there was "no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial."
There is no federal "shield law," though Sen. Christopher J. Dodd (D-Conn.) has proposed one since the Miller and Cooper cases.
Chief Judge Thomas F. Hogan of the U.S. District Court in Washington cited Branzburg in ordering Cooper and Miller to testify.
Government promise
After Branzburg, the Justice Department promised, in effect, not to abuse its power to subpoena reporters. Department guidelines instruct federal prosecutors to seek only the minimum of reporters' testimony essential to resolve a case, when all other alternatives have been exhausted.
But, as Hogan noted in his rulings, those guidelines are voluntary and do not give reporters a right to sue if they think the department has violated them. Hogan added that he believed that Patrick J. Fitzgerald, the special counsel in charge of the Justice Department's investigation, had acted in accordance with the guidelines anyway.
In a brief for Cooper and Miller filed with the D.C. Circuit, attorney Floyd Abrams argues that Hogan misinterpreted Branzburg, because one of the five justices in the majority, Lewis F. Powell Jr., wrote a concurring opinion that seemed to say courts should weigh claims of a reporter's privilege on a case-by-case basis.
But Fitzgerald counters in his brief that Powell meant only to emphasize that reporters could be protected from bad-faith prosecution, of which there is no evidence here.
Abrams notes that much has changed since Branzburg. First, the court seemed to base its decision in part on the fact that only 17 states had shield laws at the time.
Punishing the leaker?
Also, in 1975, Congress gave the federal courts broad power to create new testimonial privileges, a power the Supreme Court used in 1996 when it said that social workers could refuse to testify about what their psychotherapy patients tell them.
"We say that [ruling] tracks with the reporter-source relationship," Abrams said in an interview. He is supported on this point by a friend-of-the-court brief from 23 major news organizations, including The Washington Post.
"In the particular situations that these journalists found themselves, there was no option consistent with protecting their journalistic integrity but to fight back as hard as they could," Abrams said.
Some say that the press's position in the Plame case would be stronger if not for the fact that it started with a government leak allegedly calculated to get even with an in-house critic, Wilson -- not with a leak from an in-house critic intended to expose government wrongdoing.
"This is not to say that the sources should be revealed," said David Rudenstine, dean of the Benjamin N. Cardozo School of Law. "But here the sources that are at stake represent the government using its power to punish the leaker. . . . It's quite different from the Watergate model."
Novak not before court
Abrams, however, argues that reporters should have the right to protect sources no matter what kind of leak they publish.
"If Novak were before the court, too, there couldn't be a different result for him," Abrams said.
But Novak is not before the court, and a key question in the case is why he is not, because he presumably knows the identities of the original leakers.
Neither he nor Fitzgerald has been willing to say whether Novak has even been subpoenaed or, if so, whether he has cooperated.
One intriguing possibility, noted by several lawyers familiar with the case, is that Novak may have invoked his Fifth Amendment right against self-incrimination, and that Fitzgerald has not yet chosen to give him immunity from prosecution to compel his testimony.
Both Fitzgerald and James Hamilton, Novak's attorney, declined to comment for this article. Hamilton said Novak "will not comment."
Since 1982, it has been a federal crime for anyone who has official access to the name of a covert intelligence operative to disclose that name.
The offense is punishable by as much as 10 years in prison -- but notoriously hard to prove beyond a reasonable doubt and rarely prosecuted.
Outcry over report
The Plame leak struck columnists and editorialists as egregious not only because it might have been illegal, but also because of Wilson's assertion that his wife's career was destroyed -- and national security was damaged -- for political motives. Novak's column came out on July 14, 2003, eight days after Wilson published an op-ed article in the New York Times decrying the administration's alleged manipulation of intelligence about weapons of mass destruction in Iraq.
Washington Post columnist Richard Cohen called the leak "Nixonian in its malevolence." The New York Times editorial page called for an independent counsel to investigate, arguing that Attorney General John D. Ashcroft was too close to the White House.
Ashcroft ultimately acceded, and Fitzgerald, the U.S. attorney in Chicago, took over the case. He is not only trying to determine who leaked to Novak. As his investigation has proceeded, he has learned of conversations between administration officials and other reporters, and is trying to figure out if any of these might have resulted in an illegal leak.
In addition to Cooper and Miller, he has subpoenaed Walter Pincus of The Post and Tim Russert of NBC News. He also approached Post reporter Glenn Kessler. But all negotiated agreements with the prosecutor that enabled them to answer questions without revealing confidential sources.
Cooper, too, initially negotiated a deal to testify about his contacts with I. Lewis Libby, an aide to Vice President Cheney; but, after that, Fitzgerald asked for additional testimony, apparently based on new information he had developed about Cooper's contacts.
Fitzgerald wants Miller to testify about her talks with Libby, even though she never wrote a story about Plame. Libby has signed a letter saying he waives his anonymity, but Miller still refuses to talk. Her position is that no such waiver under pressure from a prosecutor can ever be voluntary.