MINNEAPOLIS — The CIA leak case could benefit journalists and the public by encouraging Congress to pass a law protecting reporters from having to turn over confidential information to prosecutors, a top First Amendment lawyer said yesterday.
Floyd Abrams, who is representing New York Times reporter Judith Miller in the leak investigation, also said Miller's willingness to go to jail could help journalists gain back credibility in the public eye.
Miller, who spent 85 days in jail for contempt of court for refusing to testify about her confidential sources, "was willing to put her body on the line to go to jail longer than any journalist in history," he said.
Abrams made his comments at the University of Minnesota during an annual lecture sponsored by the Silha Center for the Study of Media Ethics and Law.
The current dust-up has reignited interest in the federal shield law, which would protect journalists from having to disclose the identities of confidential sources in most cases. Thirty-one states and the District of Columbia have shield laws, but there is no set of standards that applies in federal courts.
Abrams said a pledge of confidentiality, in many cases, was "the only basis on which people will talk to journalists at all."
Abrams was co-counsel on the famous Pentagon Papers case in which the Supreme Court in 1971 refused to stop The New York Times and The Washington Post from publishing a classified history of the Vietnam War.
One audience member asked Abrams why journalists deserve any protection from naming sources or turning over notes when they may have information pertinent to a criminal case. As it stands, federal courts — case by case — measure the journalist's need to protect a source against the court's need to review information the source could provide, Abrams said.
"We have confusion and disagreement from one federal court to another," he said.
Miller, who never wrote a story revealing CIA officer Valerie Plame's identity, was released from jail and testified before the federal grand jury after a source, Vice President Dick Cheney's chief of staff, I. Lewis "Scooter" Libby, released her from her promise of confidentiality. Miller, in her testimony, said she talked with Libby but said she could not remember who told her the name that she wrote in her notebook as "Valerie Flame."
Questions about Cheney
The White House today sidestepped questions about whether Cheney passed on Plame's identity to Libby.
The New York Times reported today that notes now in the hands of a federal prosecutor suggest Libby first heard of the covert CIA officer from Cheney himself.
A federal prosecutor is investigating whether the officer's identity was improperly disclosed.
According to the newspaper, Libby's notes of a previously undisclosed June 12, 2003, conversation between Libby and Cheney appear to differ from Libby's grand jury testimony that he first heard of Valerie Plame from journalists.
The newspaper identified its sources in the story in today's editions only as lawyers who are involved in the case.
"This is a question relating to an ongoing investigation and we're not having any further comment on the investigation while it's ongoing," White House press secretary Scott McClellan said today.
Pressed about Cheney's knowledge about the CIA officer, McClellan said: "I think you're prejudging things and speculating and we're not going to prejudge or speculate about things."
McClellan said Cheney was doing a "great job" as vice president.
Libby has emerged at the center of Special Counsel Patrick Fitzgerald's criminal investigation in recent weeks because of the Cheney aide's conversations about Plame with Miller.
Miller said Libby spoke to her about Plame and her husband, Bush administration critic Joseph Wilson, on three occasions — although not necessarily by name and without indicating he knew she was undercover.
Libby's notes show that Cheney knew Plame worked at the CIA more than a month before her identity was publicly exposed by columnist Robert Novak.
At the time of the Cheney-Libby conversation, Joseph Wilson had been referred to — but not by name — in the Times and on the morning of June 12, 2003, on the front page of The Washington Post.
Notes: No suggestion undercover status known
The New York Times reported that Libby's notes indicate Cheney got his information about Plame from then-CIA Director George Tenet, in response to questions from the vice president about Joseph Wilson.
The notes also contain no suggestion that Cheney or Libby knew at the time of their conversation of Plame's undercover status or that her identity was classified, the paper said. Disclosing the identity of a covert CIA agent can be a crime, but only if the person who discloses it knows the agent is classified as working undercover.
The newspaper quoted lawyers involved in the case as saying they had no indication Fitzgerald was considering charging Cheney with a crime.
But the newspaper said any efforts by Libby to steer investigators away from his conversation with Cheney might be viewed by a prosecutor as attempt to impede the inquiry, which could be a crime.
According to a former intelligence official close to Tenet, the former CIA chief has not been in touch with Fitzgerald's staff for more than 15 months and was not asked to testify before the grand jury even though he was interviewed by Fitzgerald and his staff.
The official told the Times that Tenet declined to comment on the investigation.
Libby's lawyer, Joseph Tate, did not return phone calls and e-mail to his office. The White House also did not return calls.
Grand jury expires this week
Fitzgerald is expected to decide this week whether to seek criminal indictments in the case. Lawyers involved in the case have said Libby and Karl Rove, President Bush's senior adviser, both face the possibility of indictment.
Fitzgerald questioned Cheney under oath more than a year ago, but it is not known what the vice president told the prosecutor.
Cheney has said little in public about what he knew. In September 2003, he told NBC he did not know Wilson or who sent him on a trip to Niger in 2002 to check into intelligence — some of it later deemed unreliable — that Iraq may have been seeking to buy uranium there.
"I don't know who sent Joe Wilson. He never submitted a report that I ever saw when he came back," Cheney said at the time. "... I don't know Mr. Wilson. I probably shouldn't judge him. I have no idea who hired him."
The Cheney-Libby conversation occurred the same day that The Washington Post published a front-page story about the CIA sending a retired diplomat to Africa, where he was unable to corroborate intelligence that Iraq was trying to acquire uranium yellowcake from Niger. The diplomat was Wilson.
A year after Wilson's trip, President Bush cited British intelligence in his State of the Union address as suggesting that Iraq was pursuing uranium in Africa.
Among the others who have testified in Fitzgerald's probe are Time magazine reporter Matthew Cooper, Libby and Rove. The grand jury is set to complete its work on Oct. 28.
Reporter responds to criticism
Miller is defending herself against her own paper's criticism of her role in the CIA leak controversy, saying she was proud to serve time in jail to protect a confidential source, "even if he happened to work for the Bush White House."
Miller's response came in a lengthy e-mail to public editor Byron Calame, who recommended in an Oct. 23 column that the Times review Miller's journalistic practices for conduct that raised "clear issues of trust and credibility."
Since Miller published her account and the Times published its own story about Miller on Oct. 16, news-media critics and journalists have derided her, both for her stories strongly suggesting the presence of weapons of mass destruction in Iraq, and for failing to explain how she learned Plame's identity.
Executive Editor Bill Keller said in an Oct. 21 e-mail to staffers that Miller appeared to have misled editors about her conversations with Libby. Columnist Maureen Dowd, meanwhile, wrote on Oct. 22 that editors had been unable to control Miller.
Miller's e-mail to Calame was posted late on Oct. 23 in his Web journal on the Times' Web site. In it, Miller said she was "dismayed" by his essay and referred to Keller's staff e-mail as an "ugly, inaccurate memo."
Calame had noted Miller's assertion that she recommended to an editor a story be pursued on Plame, but had been told there was no interest. Miller's boss at the time, Jill Abramson, has said Miller didn't make such a request, and Calame wrote that he believed Abramson, now the paper's managing editor.
"Now I ask you: Why would I — the supposedly pushiest, most competitive reporter on the planet — not have pushed to pursue a tantalizing tip like this?" Miller wrote.
While she and Abramson have different recollections, Miller wrote that "without explanation ... you said you believed her and raised questions about my `trust and credibility.' That is your right. But I gave my recollection to the grand jury under oath."
Times spokeswoman Catherine Mathis didn't return a telephone call seeking comment yesterday.
Miller, 57, won a Pulitzer Prize in explanatory journalism in 2002 for her work on global terrorism threats.