Media Groups Concerned by Probe of Leak

By: Jonathan D. Salant, Associated Press Writer (AP) Media organizations prepared Tuesday to oppose any efforts by the Justice Department to subpoena journalists and their notes to learn who leaked the identity of an undercover CIA agent to columnist Robert Novak.

Subpoenas could be challenged on the basis of First Amendment guarantees of freedom of the press, said Bill Felber, editor of The Manhattan (Kan.) Mercury and freedom of information chairman for the Associated Press Managing Editors (APME). But they could also be challenged, he said, if they were too broad or if the information could be obtained in other ways.

"It would be fought on several grounds," Felber said. "The question really comes down to whether there are other ways to do this that do less damage to the idea of the First Amendment."

NBC News, whose reporter Andrea Mitchell said she had an off-the-record conversation with a Bush administration official after Novak's column was published, "doesn't disclose sources and would fight any attempt to compel us to do so," spokeswoman Barbara Levin said.

Journalists have been given a limited constitutional privilege against being forced to testify or give up their notes and sources. The Supreme Court in 1972 first agreed that such a right could exist, and several U.S. Courts of Appeals have since ruled that journalists should be the last source of information rather than the first source in legal cases.

"We will be mindful of the preferred position of the First Amendment and the importance of a vigorous press," the U.S. Court of Appeals for the District of Columbia Circuit said in 1981.

First Amendment lawyer Floyd Abrams said the law requires the Justice Department to try to find the information without going to the reporters who wrote about it. "They certainly cannot call them first," Abrams said. "In fact, the law requires that they call them last, if at all."

What worries journalists is that any attempt to ask them to give up their notes and sources could dissuade future whistle-blowers from coming forward, said APME President Ed Jones, editor of The Free Lance-Star of Fredericksburg, Va.

"The record is clear that leaks certainly are messy as seen by government administrators, but the track record of those leaks producing very important public information is extensive," Jones said. "It would be unfortunate if there's a chilling effect. And I think there would be a chilling effect. Anonymity, confidentiality would be compromised."

It may also hinder reporting, said Gary Hill, director of investigations for KSTP-TV in Minneapolis and chairman of the Society of Professional Journalists ethics committee.

"I know it sends a chill through everything every time there's a subpoena of a journalist's phone record," Hill said. "It makes you second-guess every conversation you have with people. We count on so much of what we do to be confidential and the people who tell us things count on that."

At issue are the identities of the sources who told Novak the name of a CIA operative, possibly to punish the operative's husband, former ambassador Joseph Wilson, for challenging Bush administration claims that Iraq had weapons of mass destruction.

Novak declined to comment Tuesday.

In a memo distributed late Tuesday, presidential counsel Alberto R. Gonzales instructed White House staffers to preserve records of contacts with Novak as well as with Newsday reporters Knut Royce and Timothy M. Phelps.

Newsday Editor Howard Schneider said Tuesday evening that his reporters were probably singled out because the newspaper was the first to report that a CIA officer revealed in a Novak column was an undercover operative.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the Justice Department's track record shows that it will not hesitate to question the press. For example, she said, the department subpoenaed the phone records of Associated Press reporter John Solomon to find out who leaked information about an FBI wiretap involving then-Sen. Robert Torricelli, D-N.J.

"The law requires them to exhaust all alternatives before they go after the journalists," Dalglish said. "But that's not the way this Justice Department operates. I'm expecting them to try to figure out who these sources are by going after the journalists."

Despite the investigation, it's unlikely that the Bush administration will ever discover the source of the leaks, Abrams said.

"Leak investigations themselves invariably fail," Abrams said. "Sources rarely come forward to acknowledge that they provided information and journalists never do."