Fourth Estate: Protecting Confidential Sources

24 February 2005 |permalink | email article

It has all the plot lines for a “who done it” movie thriller: A CIA operative and her diplomat husband; two White House leakers; a columnist who reports on the leak; two reporters who won’t blink and would go to jail before revealing their confidential sources; and a determined federal special prosecutor. But I’m referring to reality, not fiction, in D.C. this month.

A unanimous three-panel of a U.S. Appeals Court for the District of Columbia last week upheld a judge’s order that news reporters do not have a 1st Amendment right to refuse to testify about their conversations with public officials. Judith Miller of The New York Times and Matthew Cooper of Time now face contempt of court charges and could be jailed for refusing to testify about confidential sources in the Valerie Plame leak investigation. The legal dispute has rallied the mainstream media; the reporters and their publishers will appeal to the full appeals court; and, if necessary, the legal battle could reach the U.S. Supreme Court.

The case involving Miller and Cooper surfaced in July 2003 when retired U.S. diplomat Joseph C. Wilson wrote a newspaper column accusing President Bush of “misrepresenting the facts” when he suggested Saddam Hussein had sought uranium in Africa for use in nuclear weapons. Wilson, according to the report, based the column on his personal investigation in Niger. In response, Robert Novak, the unabashedly conservative columnist and combative CNN pundit, wrote in his July 14, 2003 syndicated column that “two senior administration officials told me his wife suggested sending Wilson to Niger.”

Then-Atty. Gen. John Ashcroft, aware that it is a crime to knowingly reveal the name of an undercover CIA agent, named a special prosecutor, Paul J. Fitzgerald, to consider whether White House aides broke the law. He got the backing of a district judge to demand that the reporters reveal who talked to them about Plame. The Times’ Miller, a Pulitzer Prize-winning correspondent, told CNN’s Wolf Blitzer that “one of the Orwellian aspects of this entire affair” is that she never wrote a story about Plame. 

The unpredictable Novak has not revealed whether he is cooperating with the investigation but he has disclosed discussing the identity of CIA officer Plame more than once. On Dec. 1, 2004, in a speech in Madison, Wis., Novak was quoted in The New York Times as saying “To the regret of many people, I am not a criminal target.” But he remains a central figure in what The Times’ Lorne Manly and Adam Liptak reported “is perhaps the gravest confrontation between the government and the press in a generation.” 

In a pithy paragraph, The Washington Post‘s Howard Kurtz summed it up: “The concept of journalists being jailed for doing their jobs - which often includes promising confidential sources confidentiality - strikes a sensitive chord within the Fourth Estate.” [In his “New Political Dictionary,” lexicographer William Safire’s vote for coining the phrase as a definition of the press went to English essayist William Hazlitt for a 1821 work.]

David G. Savage and James Rainey reported in The Los Angeles Times that California, 30 other states and the District of Columbia have created shield laws guarding at least some of the communications. “But those laws have not prevented state, and particularly, federal judges from issuing a series of rulings seeking to get reporters to disclose who gave them information.” 

After decades of tentative discussions about the privilege dating back to Watergate, there is good news: House and Senate members recently introduced identical measures that would give reporters absolute protection against the forced disclosure of confidential news sources. While some conservative legal scholars search for exceptions, such legislation has won initial bipartisan support. It’s a good start.

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