The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit sided with prosecutors in their attempt to compel The New York Times' Judith Miller and Time magazine's Matthew Cooper to testify before a federal grand jury about their confidential sources.
"We agree with the District Court that there is no First Amendment privilege protecting the information sought," Judge David B. Sentelle said in the ruling, which was unanimous.
[In an intriguing sidelight, eight pages of material about Miller and Cooper were redacted in the judges' written ruling, presumably information sent to the judges by the special prosecutor.]
Floyd Abrams, the lawyer for both reporters, said he would ask the full appeals court to reverse this ruling. "Today's decision strikes a heavy blow against the public's right to be informed about its government," Abrams said in a statement.
In October, Judge Thomas F. Hogan held the reporters in contempt, rejecting their argument that the First Amendment shielded them from revealing their sources. Both reporters face up to 18 months in jail if they continue to refuse to cooperate.
[Arthur O. Sulzberger, Jr., publisher of The New York Times, issued this 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."]
The special prosecutor in the case, Chicago U.S. Attorney Patrick Fitzgerald, is investigating whether a crime was committed when someone leaked the identity of CIA officer Valerie Plame. Her name was published in a 2003 column by Robert Novak, who cited two senior Bush administration officials as his sources.
The column appeared after Plame's husband, former Ambassador Joseph Wilson, wrote a newspaper opinion piece criticizing President Bush's claim that Iraq had sought uranium in Niger. The CIA had asked Wilson to check out the uranium claim. Wilson has said he believes his wife's name was leaked as retaliation for his critical comments.
Disclosure of an undercover intelligence officer's identity can be a federal crime if prosecutors can show the leak was intentional and the person who released that information knew of the officer's secret status.
Cooper is a White House correspondent for Time who has reported on the Plame controversy. He agreed in August to provide limited testimony about a conversation he had with Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, after Libby released Cooper from his promise of confidentiality.
Fitzgerald then issued a second, broader subpoena seeking the names of other sources.
Miller is facing jail for a story she never wrote. She had gathered material for an article about Plame, but ended up not doing a story.
[She stated, in a New York Times article today: "A case like mine is a warning to people not to talk because the government will come after you, and that's what we're fighting. That's what the press ought to be concentrating on: the threats to the First Amendment and the free press."]
Prosecutors have interviewed President Bush, Cheney, then-Secretary of State Colin Powell and other current or former administration officials in the investigation. Journalists from NBC and The Washington Post also have been subpoenaed.
By: A federal appeals court today upheld a ruling against two reporters who could go to jail for refusing to divulge their sources to investigators probing the leak of an undercover CIA officer's name to the media.