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Judge says N.Y. Times reporter must testify to grand jury on leak


A federal district judge in Washington has ordered a reporter for The New York Times to testify before a grand jury investigating the disclosure of the identity of a covert CIA officer.

In a decision dated Sept. 9 and released yesterday, the judge, Thomas F. Hogan, said the reporter, Judith Miller, must describe any conversations she had with "a specified executive branch official" as "part of the ongoing investigation of the potentially illegal disclosure of the identity of CIA official Valerie Plame."

George Freeman, assistant general counsel of the New York Times Co., said: "We regret that Judge Hogan has denied our motion to quash the subpoena on Judy Miller seeking that she reveal her confidential sources. Journalists should not be forced to testify about their confidential sources when they have done nothing more than aggressively gather news about government actions."

Hogan, the chief judge of the U.S. District Court for the District of Columbia, did not say what penalty Miller might face if she refused to provide the testimony sought by a special prosecutor investigating the disclosure of Plame's identity.

"This court holds that Miller has no privilege, based in the First Amendment or common law, qualified or otherwise, excusing her from testifying before the grand jury in this matter," Hogan wrote. In short, he said, "Miller must fulfill her obligation, shared by all citizens, to answer a valid subpoena issued to her by a grand jury acting in good faith."

In his opinion, Hogan said, "The information requested from Miller is very limited, all available means of obtaining the information have been exhausted, the testimony is necessary for the completion of the investigation, and the testimony sought is expected to constitute direct evidence of innocence or guilt."

Hogan said that Miller had never written an article about Plame or her husband, Joseph C. Wilson IV, a former diplomat. But, the judge said, Miller "contemplated writing one."

In an earlier decision related to the same investigation, Hogan ordered a reporter for Time magazine jailed and said the magazine must pay a fine of $1,000 a day. He suspended the sanctions while they appealed, and he withdrew them entirely when the reporter ultimately testified.

Floyd Abrams, a leading First Amendment lawyer who represents Miller, said she would appeal to the U.S. Court of Appeals for the District of Columbia Circuit.

Hogan cited the 1972 case of Branzburg vs. Hayes, in which the Supreme Court held that the First Amendment does not relieve a newspaper reporter of "the citizen's normal duty" to furnish relevant information to a grand jury.

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