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Wednesday, Nov 25, 2009
The Supreme Court's refusal to hear the Cooper-Miller case will do more than hurt two reporters -- it will erode the press's ability to cover sensitive stories.
Jun 28, 2005 | The tale is like something out of Kafka: In 2003, George W. Bush accused Saddam Hussein of trying to buy uranium in Africa. A former U.S. ambassador, Joseph Wilson, revealed that the claim was false. In an obvious attempt to punish Wilson, one of Bush's aides then disclosed the identity of Wilson's wife, an undercover CIA operative named Valerie Plame, to the conservative columnist Robert Novak, who printed the name. The Justice Department then launched an investigation to find out the identity of the leaker, but two years later, neither Bush, Novak nor anyone in the White House, the CIA or the Pentagon has been punished over the matter. Now, after a Supreme Court decision handed down Monday morning, it appears that the only people who'll be going to jail in connection with the uranium imbroglio are two reporters who had almost nothing to do with it. One of them has never even published an article on the case.
The two reporters are Judith Miller, of the New York Times, and Matthew Cooper, of Time Magazine. Although Cooper wrote a story naming the operative, he did so only after Novak's column was published; Miller has not written on the subject. But both have been subpoenaed by Patrick Fitzgerald, a special prosecutor appointed by the Justice Department to determine who leaked Plame's name and occupation to the media. Citing a journalistic duty to protect their sources, Miller and Cooper have refused to testify before Fitzgerald's grand jury. Now that the Supreme Court has declined, without explanation, to hear their appeal, the two will likely head to jail (or begin home confinement) in a matter of days.
The court's decision, several veteran investigative reporters and First Amendment watchdog groups said Monday, threatens to stifle journalists' investigations into the most sensitive federal issues, especially stories having to do with national security.
"I am absolutely convinced that reporters will continue to assure confidential sources that they will be willing to go to jail to protect them -- but the court's decision will make the sources more unwilling to come forward," says Andy Alexander, Washington bureau chief for Cox Newspapers and the chair of the Freedom of Information Committee for the American Society of Newspaper Editors. Miller's case is particularly troubling, Alexander says. Allowing a federal prosecutor to compel a reporter to testify even if she's never published the source's information "moves us perilously close to having the government turning reporters into an arm of the police. When we see that happening in regimes around the world Americans are quick to label it a police state. Well, now that's happening in America."
What's most odious about the idea of Miller and Cooper going to jail is that there isn't a clear purpose to it. Perhaps you could make an argument for keeping them behind bars if it would lead the government to the scoundrel who leaked Plame's name. But lawyers who've been watching Fitzgerald's moves in the case suggest that he may already have some idea of who leaked the name, and the fact that he hasn't yet charged someone in the case may indicate that there's not enough evidence to move forward on the prosecution. Instead, what Fitzgerald seems to be after is a much weaker charge of obstruction of justice -- a low-level, catchall accusation that federal prosecutors use all the time when their main investigation runs dry. (Martha Stewart, for instance, was convicted of obstruction -- lying to prosecutors -- after investigators failed to make an insider trading charge stick.)
Compelling a reporter to testify about his or her sources in order to prosecute a mere obstruction of justice charge would strike a deep blow at the free press, says Bruce Sanford, a First Amendment attorney at the Washington firm Baker & Hostetler. "It's a puny crime at best, and it really does not justify this incredible disruption of the relationship between reporters and sources," Sanford says.
Sanford was one of the drafters of the 1982 Intelligence Identities Protection Act, the law that makes it a crime to divulge an intelligence agent's identity. He has long argued that the leak to Novak was not technically a crime under the 1982 law; Plame wasn't a classified undercover agent in a foreign land (she had a desk job in Virginia in the summer of 2003), and her identity was therefore not really that deep a secret. It's likely that Fitzgerald has also come to the same conclusion -- that would be one explanation for why he hasn't charged anyone in the case.
In its brief to the Supreme Court, Time Inc. argued that one reason justices should hear the case was precisely this question over whether leaking Plame's name was a crime. In a statement released Monday, Time -- which was represented in the case by Theodore Olson, Bush's former solicitor general, and Miguel Estrada, whom Bush once nominated for a seat on the D.C. court of appeals -- said that it now plans to make a similar argument to Judge Thomas Hogan, the D.C. judge who initially held Miller and Cooper under contempt. A spokeswoman for the New York Times said that the paper plans to do the same on behalf of Judith Miller. An attorney for Time said the hearing could come "in a matter of days, not weeks."
The irony here, of course, is that many on the left have long been arguing that disclosing Plame's name was a crime for which someone should be jailed. Joe Wilson, who initially fingered Bush political advisor Karl Rove as the leaker, famously said that whoever named his wife to the press should be "frog-marched out of the White House in handcuffs." But at the moment, Rove or whoever else in the White House may have named Plame looks safe from the frog-march.
