'Time' decides to name source who leaked agent's identity
By By Nick Madigan
Jul 01, 2005 at 3:00 AM
Under pressure from a judge and a special prosecutor, and a threat of jail for a veteran reporter, Time magazine announced yesterday that it would identify who in the White House leaked the name of a covert CIA agent.
The announcement by the magazine, which could spare reporter Matthew Cooper a stint behind bars, came a day after a federal judge in Washington gave Time and The New York Times 48 hours to file papers explaining whether they would comply with a long-standing order that they provide a grand jury with the source of the leak.
The decision could have a significant effect on potential whistle-blowers, who may fear that whatever promises of protection they receive from reporters could be reversed and their names exposed. That, in turn, could undermine the work of journalists who rely on such sources in their role as government watchdogs.
"When you promise someone anonymity, you need to be able to keep that promise," said Rick Rodriguez, president of the American Society of Newspaper Editors and executive editor of The Sacramento Bee. "Otherwise, it will make people reluctant to discuss information of importance to the public."
Rodriguez said the prospect of jail time for Judith Miller of the Times and Cooper "underscores why we need to have a discussion around a federal shield law" that would protect journalists much as the attorney-client privilege protects attorneys and their clients.
It was unclear what effect the magazine's disclosure would have on the fate of Miller, the other reporter in the case, whose superiors at the newspaper indicated yesterday that they had no intention of revealing the source of the CIA agent's name.
Norman Pearlstine, Time Inc.'s editor in chief, said in a statement that although the company "strongly disagrees" with the court's demand that it reveal the source, it had little choice but to abide by the order.
"The same Constitution that protects the freedom of the press requires obedience to final decisions of the courts," Pearlstine said.
Arthur O. Sulzberger Jr., the publisher of the Times, who had chatted amiably with Pearlstine at Wednesday's hearing, issued a statement yesterday that was less friendly.
"We are deeply disappointed by Time Inc.'s decision to deliver the subpoenaed records," Sulzberger said. "Our focus is now on our own reporter, Judith Miller, and in supporting her during this difficult time."
Sulzberger recalled similar pressures faced by the Times in 1978, after reporter Myron A. Farber and his editors refused to give a New Jersey judge his notes in the case of Dr. Mario Jascalevich, who was charged with poisoning hospital patients. Although Farber claimed a privilege that was granted to reporters by a New Jersey "shield" statute, he was cited for contempt and spent 40 days in jail, and the Times was forced to pay at least $185,000 in fines.
The current case stemmed from a July 6, 2003, op-ed piece written for the Times by former diplomat Joseph C. Wilson IV in which he faulted President Bush's assertion in the State of the Union speech that Saddam Hussein had tried to buy uranium from Niger.
A week after Wilson's article ran, columnist Robert D. Novak identified Wilson's wife, Valerie Plame, as a CIA "operative," and said the information had come from two administration sources. The leak was thought by some to be in retaliation for Wilson's comments.
Cooper wrote about the issue for Time.com, while Miller researched the topic but did not write a story.
Until Wednesday, Novak had not commented publicly about the matter, but in an appearance on CNN's Inside Politics he said he was disappointed that the two reporters faced jail time. Novak said, however, that he was not responsible for the situation.
"They're not going to jail because of me," he said. "Those people who say that don't know anything about the case."
At Wednesday's court hearing, Judge Thomas F. Hogan said he would decide the reporters' fate by July 6 and would impose large fines on Time magazine, which also was cited with contempt because it has custody of Cooper's notes; the Times itself was not cited because it has no such documents.
Journalists typically balk at revealing the names of confidential sources because the protection of anonymity provides a crucial conduit for information about the government and other institutions.
"The basic issue is, do reporters work for the government or do they work independently?" asked Lisa A. Abraham, a reporter who served 22 days in jail in 1994 in Trumbull County, Ohio, for refusing to testify before a grand jury about an elected official whom she had interviewed and who later was indicted on numerous counts. "If we work for the government, we may as well hang up our notebooks."
Abraham, who worked for The Tribune Chronicle in Warren, Ohio, and was 30 at the time, said the prospect of going to jail "was actually scarier than being there."
"I don't know what's sadder," said Abraham, who now covers politics for The Akron Beacon Journal, "the fact that Judy Miller may be going to jail or the fact that Time magazine is willing to turn over Cooper's notes."
In a 1994 interview with The New York Times, Abraham cited a concern that appears to be much on the minds of reporters still.
"If I cooperated, it would shatter the credibility of all reporters," she said. "If I cooperated, any sources looking at me - past, present or future - would wonder, 'Can I trust her?'"
Frank Smyth, the Washington representative for the Committee to Protect Journalists, addressed the issue in more global terms. In a statement, he said Bush "has raised the need for greater press freedom in Russia, the Middle East, and Asia, but the message from U.S. prosecutors and courts is being heard more clearly in repressive corners of the world."
Timothy Crews, the editor and publisher of The Sacramento Valley Mirror in Willows, Calif., who served five days in jail in 2000 for refusing to tell a judge the names of two law-enforcement sources, said the Miller-Cooper case "boils down to one thing, that you can't do decent journalism without anonymous sources."
"I cannot remember a darker day since the McCarthy hearings, which I'm old enough to remember," said Crews, 62. "What's happening now in this country is what we've been criticizing in the Third World for years, which is coercion of journalists by the government. It has a tremendous chilling effect, and no one can say it doesn't."
For precedent in such matters in recent years, judges have tended to rely on a 1972 Supreme Court case, Branzburg v. Hayes, which was prompted by the refusal of three reporters to disclose sources in response to grand jury subpoenas. The justices ruled 5-4 that journalists do not have an absolute First Amendment right to refuse testimony before courts. Under the ruling, the government still must prove that the information sought is directly relevant to the case and is not available from other sources.
Ironically, Fitzgerald, the special prosecutor, indicated to Hogan's court Wednesday that he was already aware of the source of the leak.
In February, the U.S. Court of Appeals for the D.C. Circuit cited Branzburg when it upheld Hogan's contempt findings against Cooper, Miller and Time magazine. On Monday, the Supreme Court announced that it would not hear the reporters' appeal of that decision.
The two reporters had been ordered last fall to serve 18 months in jail, or until the grand jury completes its work, but if they go to jail next week they are unlikely to stay there beyond the end of the grand jury's term in October.