NO REPORTERS PRIVILEGE

It's a crime against the United States to reveal the identity of CIA agents charged with protecting the country by gathering intelligence by their various means.

So when someone, perhaps in the White House, leaked to the press the fact that a former ambassador's wife was a CIA agent, she was effectively ruined as a spy and the people she'd had contact with were endangered.

A grand jury investigation followed and several reporters were subpoenaed to testify as to who gave them this secret information as to the identity of our spy.

The reporters have refused to give up the information, even though they've been told they will be held in contempt of court for willful disobedience to the court's legal process, a grand jury subpoena.  Maybe they've been offered immunity from prosecution and have invoked the Fifth Amendment right against being compelled to incriminate themselves out of their own mouths, but they still won't talk.

Why won't they talk if they can't go to jail?

Because if they talk, the reporter's business, the newspaper business, will dry up, they fear, because no one in government will talk to a reporter to leak what's really going on with the people's business if the leakers are afraid the reporter's promise will not be kept to keep secret the source of the information. 

The news source will be burned as badly as the spy was burned.

Newspapers such as the New York Times, the Washington Post, and other great papers are upset that the law does not protect their right to gather information.

Government is upset that its employees are committing crimes such as burning spies to reporters.

Government wants to be able to do something about this sorry state of affairs where it cannot even protect its spies from reporters.  It wants to force reporters to talk, to give up their sources.

Government argues that it is more important to stop the commission of a crime than it is to write about it.

Reporters and newspapers say it is more important to keep us, the voters, informed of leaked information, such as who our spies are, because why?  I'm not sure I know why spies should be burned to sell newspapers or to keep me informed.  How does it help me, or you, to know that So-and-so is really working for the CIA.  Maybe she's hot on the trail of the next Trade Center bomber.

So far, the Supreme Court has sided with government in a case called Branzburg v. Hayes (1972).

Here's the latest on the Judith Miller, et. al. saga.  She's the reporter for the NY Times who risks going to jail for protecting her source by keeping her mouth shut despite a court order to talk.  Assuming she loses, she'll be in jail for the balance of the 18-month federal grand jury term, renewable. 

The key to her cell-door will be her tongue.

Well, why isn't there a privilege for reporters?  Aren't reporters important?

One of the problems is that reporters aren't the only trade, calling, business, or profession that would like not to have to answer questions before a grand jury.  So would cops, talk therapists, social workers, baseball players (steroids), and a lot of other people.  Meanwhile, only attorneys, ministers of religion concerning confessions to get straight with God, and a limited number of others, such as some medical doctors, are cloaked in a legal confidentiality privilege, and even these contain limitations and exceptions. 

If the client tells the attorney that I just shot my grandmother, the statement is privileged.  But if the client says that as soon as I leave your office I'm going to shoot my grandmother, the statement is not privileged and the attorney had better start thinking in terms of picking up the telephone.

So the courts do not wish to extend the confidentiality privilege to reporters.  One of the problems is in identifying who is a legitimate reporter.

I'm reporting here on developments in Constitutional Law.  Would this make me a reporter entitled to a privilege of confidentiality if the Supreme Court were to recognize such a new privilege under the First Amendment?  I can imagine the Court saying that the right of the citizenry to be kept informed includes the subsidiary right of allowing reporters to keep their sources confidential despite subpoenas and grand juries.  I might have difficulty imagining this set of justices holding that, but someday it might happen, perhaps as the result of this case.  Meanwhile, Branzburg declines to recognize such a right.

Which way would you jump on such an issue?  Current events soon make their way onto law exams, don't they.

Could you craft a principled reporter's privilege in words that protected the Washington Post and the New York Times without also immunizing every Tom, Dick, and Harry who wanted immunity claiming he was only committing this bank robbery because he wanted to write about it for his school newspaper?

The NYT report by Adam Liptak on the Joseph Wilson - Valerie Plame, Judith Miller (NYT)-Matthew Cooper (Time) controversy appears below, for your educational benefit and convenience, in the sincere hope that this represents fair use.

The Washington Post report is here.

Jack Shafer of Slate has this interesting take on Miller & Cooper's plight, with a link to the Intelligence Identity Protection Act of 1982 that may have been violated, or may not, and what it supposedly means according to the attorneys who drafted it.

For a comment on the bloggers'  non-privilege to be treated as journalists under the laws of some states, check this article by an NYU business professor.

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3/4/05

This just in, a lower court in California holds that a blog site must reveal its sources (Apple employees, apparently) to Apple where the site published confidential data about Apple.  No reporters privilege recognized.  Here.

The Electronic Frontier Foundation links to court filings on this case here.

Additional, Earthtimes.com, here.

February 15, 2005   Appeals Court Says Reporters Must Testify or Go to Jail   By ADAM LIPTAK     wo reporters who have refused to name their sources to a grand jury investigating the disclosure the identity of a covert C.I.A. agent should be jailed on contempt charges, a three-judge panel of the federal appeals court in Washington ruled unanimously today. Citing a 1972 decision of the United States Supreme Court, the panel held that the reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, have no First Amendment protection from a grand jury subpoena seeking to learn the identity of their sources. Under a 1982 law, it can be a crime for government officials to divulge the identities of covert agents. The 1972 decision, Branzburg v. Hayes, considered four consolidated grand jury cases, including one in which a reporter witnessed illegal drugs being made. In today's opinion, the panel said the Supreme Court's "transparent and forceful" reasoning in that case applied to the two reporters before the appeals court now. "In language as relevant to the alleged illegal disclosure of the identity of covert agents as it was to the alleged illegal processing of hashish," the panel wrote, "the court stated that it could not 'seriously entertain the notion that the First Amendment protects the newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about a crime than to do something about it.' " But the judges disagreed about whether evolving legal standards reflected in lower-court decisions and state statutes might provide a separate, nonconstitutional basis for protection to reporters in some circumstances, under a so-called common law privilege. That dispute was, however, of no immediate help to Ms. Miller and Mr. Cooper, as all three judges agreed that the special federal prosecutor in the case, Patrick J. Fitzgerald, had overcome whatever protection was available. The reporters will ask the full appeals court, the United States Court of Appeals for the District of Columbia Circuit, to hear the case, their lawyers said. Should that fail, they are likely to ask the United States Supreme Court to review the case. Those steps could take weeks or months, a spokeswoman for The New York Times Company, Catherine J. Mathis, said. Unless Mr. Fitzgerald asks for a suspension of the usual procedures, the reporters will remain free at least until the appeals court rules on their request for a rehearing. Mr. Fitzgerald did not address that issue in a statement issued by his office. "Today the Court of Appeals affirmed that reporters do not have a First Amendment privilege to refuse to comply with a grand jury subpoena issued in good faith," the prosecutor said, asserting that there was a "critical need for the reporters to comply with the subpoenas in this case." He added that "we look forward to resuming our progress in this investigation and bringing it to a prompt conclusion." Last fall, Ms. Miller and Mr. Cooper were held in contempt of court by Chief Judge Thomas F. Hogan of the United States District Court in Washington, who ordered them jailed for as long as 18 months. They would be released, he said, if they agreed to testify. The case has its roots in an opinion article published in The Times on July 6, 2003. In it, a former diplomat, Joseph C. Wilson IV, criticized a statement made by President Bush in his 2003 State of the Union address. Mr. Wilson based his criticism on a trip he had taken to Africa for the C.I.A. the previous year. Eight days after Mr. Wilson's article was published, the syndicated columnist Robert Novak reported that "two senior administration officials" had told him that Mr. Wilson's wife, Valerie Plame, was "an agency operative on weapons of mass destruction." Mr. Wilson has said the disclosure of his wife's affiliation with the Central Intelligence Agency was retaliation for his criticism. Others have said that the disclosure put his criticism in context by suggesting that Mr. Wilson's trip was not a serious one but rather a nepotistic boondoggle. It is not known whether Mr. Novak has received a subpoena or, if he did, how he responded. Mr. Cooper and two other Time reporters published an article on Time's Web site three days after Mr. Novak questioning the administration's motives for disclosing Ms. Plame's identity and saying that the magazine had received similar information. Ms. Miller has not written on the Plame matter, though she conducted interviews in contemplation of a possible article. The editor in chief of Time Inc., Norman Pearlstine, said in a statement: "We continue to believe that the right to protect confidential sources is fundamental to journalism. Without that right, important information that should be available to the public would never see the light of day. In the United States, no journalist should have to go to jail simply for doing his or her job." Arthur Sulzberger Jr., the chairman of The Times Company and the publisher of The Times, said in a separate statement: "We are deeply dismayed at the U.S. Court of Appeals decision to affirm holding Judith Miller in contempt, and at what it means for the American public's right to know. If Judy is sent to jail for not revealing her confidential sources for an article that was never published, it would create a dangerous precedent that would erode the freedom of the press. "The protection of confidential sources was critically important to many groundbreaking stories, such as Watergate, the health-threatening practices of the tobacco industry and police corruption. The Times will continue to fight for the ability of journalists to provide the people of this nation with the essential information they need to evaluate issues affecting our country and the world. And we will challenge today's decision and advocate for a federal shield law that will enable the public to continue to learn about matters that directly affect their lives." A spokesman for Mr. Fitzgerald did not immediately respond to a request for comment. Mr. Fitzgerald has in the past consistently declined to discuss the case.   Copyright 2005 The New York Times Company | Home | Privacy Policy | Search | Corrections | RSS | Help | Back to Top

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This just in, reformatetted and emboldened in places:

The New York Times

February 26, 2005

EDITORIAL

A Victory for Press Freedom

In a welcome ruling for this newspaper, and the larger cause of robust journalism and government accountability, a federal judge in New York has barred a federal prosecutor's ill-conceived effort to get the phone records of two Times reporters from the fall of 2001 in order to discover the identity of their confidential sources.

To justify this intrusive fishing expedition, which could reveal hundreds of communications with confidential sources, the prosecutor, Patrick Fitzgerald, the United States attorney in Chicago, had argued that the records were needed for a grand jury's investigation of government misconduct in the disclosure of impending government actions against two Islamic charities.

The judge, Robert Sweet, reasoned, correctly, that the subpoenas for the phone records were the functional equivalent of demanding testimony from the reporters themselves, and he took note of the important role of confidential sources in news investigations of the Watergate, Iran-contra, Monica Lewinsky and Abu Ghraib scandals.

He explained that the United States Court of Appeals for the Second Circuit in New York recognized a qualified First Amendment privilege that protects reporters from being compelled to disclose their confidential sources. And he said Mr. Fitzgerald had not shown that the information he sought was critical and could not be gotten elsewhere.

"The reporters at issue relied upon the promise of confidentiality to gather information concerning issues of paramount national importance," Judge Sweet wrote, referring to Judith Miller and Philip Shenon of The Times. "The government has failed to demonstrate that the balance of competing interests weighs in its favor."

Judge Sweet's finding of broad protections for reporters facing grand jury subpoenas stands as a refreshing contrast with last week's chilling decision by a three-judge appellate panel in Washington.

That panel found no such protection for members of the press in another case involving Mr. Fitzgerald and Ms. Miller: a grand jury's investigation into the disclosure of the identity of an undercover C.I.A. officer, Valerie Plame.

The Washington appeals court ruling raised the prospect that Ms. Miller and Matthew Cooper, of Time magazine, could be jailed for up to 18 months for refusing to testify before a different grand jury.

That situation cries out for a rehearing by the full appellate bench and, ultimately, Supreme Court review, especially in light of the contrary New York ruling. Meanwhile, an even more basic issue has been raised in recent articles in The Washington Post and elsewhere: the real possibility that the disclosure of Ms. Plame's identity, while an abuse of power, may not have violated any law.

Before any reporters are jailed, searching court review is needed to determine whether the facts indeed support a criminal prosecution under existing provisions of the law protecting the identities of covert operatives.

Some judge may have looked at the issue, but we have no way of knowing, given the bizarre level of secrecy that still prevents the reporters being threatened with jail from seeing the nine-page blanked-out portion of last week's decision evaluating the evidence.

Copyright 2005 The New York Times Company | Home | Privacy Policy | Search | Corrections | RSS | Help | Back to Top