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D.C. Circuit rules against reporters in CIA leak case

By The Associated Press
02.15.05

WASHINGTON — A federal appeals court today upheld a ruling against two reporters who could go to jail for refusing to divulge their sources to investigators probing the leak of a CIA officer's name to the media.

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit sided with prosecutors in their attempt to compel Time magazine's Matthew Cooper and The New York Times' Judith Miller to testify before a federal grand jury about their confidential sources.

"We agree with the District Court that there is no First Amendment privilege protecting the information sought," Judge David B. Sentelle said in the ruling, which was unanimous.

Floyd Abrams, the lawyer for both reporters, said he would ask the full appeals court to reverse today's ruling. "Today's decision strikes a heavy blow against the public's right to be informed about its government," Abrams said in a statement.

In October, Judge Thomas F. Hogan held the reporters in contempt, rejecting their argument that the First Amendment shielded them from revealing their sources. Both reporters face up to 18 months in jail if they continue to refuse to cooperate.

The special prosecutor in the case, Chicago U.S. Attorney Patrick Fitzgerald, is investigating whether a crime was committed when someone leaked the identity of CIA officer Valerie Plame. Her name was published in a 2003 column by Robert Novak, who cited two senior Bush administration officials as his sources.

Later today Fitzgerald said he wanted to bring his 14-month-old investigation "to a prompt conclusion." The judges agreed that "the government has shown critical need for the reporters to comply with the subpoenas in this case," he said in a statement.

Both Time and The New York Times said they would not give up their fight. Times publisher Arthur Sulzberger Jr. said the newspaper also would press for "a federal shield law" to make it harder to subpoena reporters or compel their testimony. Shiled-law legislation has been introduced in Congress.

White House press secretary Scott McClellan had little to say about the appeals court's ruling. "The president has made it clear that he wants to get to the bottom of this matter," McClellan said, adding that Bush also has urged anyone with information on the case to come forward.

The column appeared after Plame's husband, former Ambassador Joseph Wilson, wrote a newspaper opinion piece criticizing President Bush's claim that Iraq had sought uranium in Niger. The CIA had asked Wilson to check out the uranium claim. Wilson has said he believes his wife's name was leaked as retaliation for his critical comments.

Disclosure of an undercover intelligence officer's identity can be a federal crime if prosecutors can show the leak was intentional and the person who released that information knew of the officer's secret status.

Novak has not said whether he has been subpoenaed or has cooperated with investigators.

Cooper is a White House correspondent for Time who has reported on the Plame controversy. He agreed in August to provide limited testimony about a conversation he had with Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, after Libby released Cooper from his promise of confidentiality.

Fitzgerald then issued a second, broader subpoena seeking the names of other sources.

Miller is facing jail for a story she never wrote. She had gathered material for an article about Plame, but ended up not doing a story.

Prosecutors have interviewed President Bush, Cheney, then-Secretary of State Colin Powell and other current or former administration officials in the investigation. Journalists from NBC News and The Washington Post also have been subpoenaed.


Update
CIA leak probe complete except for reporters' testimony
Floyd Abrams, who is representing Matthew Cooper and Judith Miller, says prosecutor hasn't explained why journalists' testimony is important to his case. 04.07.05

Previous
Appeals court hears arguments from reporters in CIA leak probe
One judge seems especially skeptical of Floyd Abrams' arguments that some legal protection exists for journalists who refuse to divulge their sources. 12.09.04

Related

Bill to create federal shield law introduced in House

Legislation sponsored by Reps. Mike Pence, Rick Boucher would also protect news media from having to reveal confidential sources. 02.02.05

Maryland governor's aide questions reporters about online rumors
Chief counsel cites recent D.C. Circuit ruling on journalists' confidential sources as support for inquiry into anonymous Web postings about Baltimore's mayor. 02.21.05

New York Times can withhold phone records from government
Federal judge finds newspaper has First Amendment right to protect confidentiality of its sources in certain circumstances. 02.24.05

Intel panel complains press leaks help U.S. foes
Those disclosing classified info should be more vigorously prosecuted, commission warns; excessive secrecy more harmful than leaks, AP attorney counters. 04.01.05

Taking prisoners in the war on journalism
By Paul K. McMasters Hunt for whoever leaked CIA agent's name puts shadow of jail over journalists instead of leakers. 10.24.04

Journalists need a get-out-of-jail-free card
By Paul K. McMasters Law enforcement wants journalists to help do its investigating — and is filing charges against them if they refuse. 11.28.04

'Do Journalists Need a Better Shield?'
Paul McMasters and Geoffrey R. Stone debate issue of journalist shield law (re-posted by permission from the Legal Affairs magazine Web site). 12.14.04

Track shield laws, subpoenas, confidentiality cases here

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