CHICAGO The federal judge who presided over Washington’s CIA leak case and a separate case involving a journalist’s sources said Aug. 1 that reporters must have some protection against courtroom attempts to find out their sources but it should be limited.
Courts should not be able to “just willy nilly extract information from reporters,” U.S. District Judge Reggie B. Walton of Washington told an American Bar Association panel on proposed shield legislation.
Shield legislation now pending on Capitol Hill would give reporters some protection against having to reveal their sources. But both House and Senate bills contain exceptions for national security and other sensitive matters.
The panel at the ABA’s annual meeting consisted of Walton, Chicago U.S. Attorney Patrick J. Fitzgerald, media lawyer Guylyn Cummins and Chicago Sun-Times reporter Abdon Pallasch. The moderator was Stephen J. Wermiel of the American University College of Law.
Walton presided over the trial in which former Vice President Dick Cheney’s onetime top aide, I. Lewis “Scooter” Libby, was convicted of lying to a federal grand jury investigating the leak to the news media of Valerie Plame’s identity as a Central Intelligence Agency operative.
During that investigation, former New York Times reporter Judith Miller was sent to jail for 85 days by another judge for refusing to testify before a federal grand jury about a source who spoke to her about the matter.
In a separate case, Walton held USA Today reporter Toni Locy in contempt for refusing to identify sources for stories about the 2001 anthrax attacks. Walton ordered Locy to personally pay fines of up to $5,000 a day unless she identified officials who discussed Steven J. Hatfill, who was named a person of interest in the anthrax attacks but was eventually exonerated by the Justice Department.
The U.S. Circuit Court of Appeals for the District of Columbia later threw out the contempt order against Locy.
While Walton said Aug. 1 that there were dangers in an unlimited shield for reporters, he added: “I do believe reporters should have some level of protection.”
Pallasch spoke about the concerns of reporters who believe that if they are forced to name their sources of information the sources will be afraid to talk.
Pallasch noted that prosecutors have acknowledged that their investigations sometimes begin with news reports based on tips from sources who sought to remain anonymous.
“If you don’t confide in reporters … how do we get the tip?” he said.
Chicago’s U.S. attorney Patrick J. Fitzgerald, the federal prosecutor who had Miller jailed, said those calling for a shield law should realize what they are asking for when they seek unlimited protection.
Even federal agents couldn’t offer unlimited protection to a source willing to disclose the hiding place of Osama bin Laden, Fitzgerald said.
“Even the president can’t do that,” he said.
Fitzgerald said the leak in the Plame investigation was not from a whistleblower trying to expose official corruption but “the leak was the crime.”