'NY Times' Continues to Question Pearlstine Decision on Cooper

By: Joe Strupp Time Inc. will hand over documents to a special prosecutor in the Matt Cooper/Judith Miller case today, but not make them public. Time's Editor in Chief Norman Pearlstine told E&P he decided to turn over documents that would reveal reporter Cooper's source in the Valerie Plame case to a special prosecutor because following the law is more important than keeping the source confidential.

"We did not have a valid argument to support the assertion that we are above the law," Pearlstine told E&P. "I think it sets a bad precedent for journalists to think they are above the law, it leads to anarchy. That is one of the reasons the press is held in such low esteem."

On Thursday, Arthur Sulzberger, Jr., publisher of The New York Times, whose reporter Judith Miller is also facing jail in this case, said he was disappointed in Time Inc.'s decison. Friday, in a front page article, Adam Liptak of The Times added this perspective:

"The case represents the starkest confrontation between the press and the government since 1971, when the Supreme Court refused to stop The Times and The Washington Post from publishing a classified history of the Vietnam War known as the Pentagon Papers. And legal experts said yesterday that they knew of no other instance in modern journalistic history in which a major news organization announced that it would disclose the identities of its confidential sources in response to a government subpoena. The press has traditionally argued that it needs to be able to protect confidential sources to ensure that the public is fully informed."

Bolstering this argument further, he quoted critics of Pearlstine's decision. "It makes it appear that they did it for the money," said Jane Kirtley, who teaches media ethics and law at the University of Minnesota. "If judges can get these news organizations by the balance sheet, they're going to yield. For Time Warner not to rally round the crown jewel of their empire to support a journalist is appalling."

Pearlstine, whose magazine faced a $1,000-per-day fine for refusing to turn over the documents, told E&P money was not an issue. "It was not about financial considerations," he said. "it grew out of a thorough analysis of this specific case."

He also responded to the statement issued by the Times' Sulzberger.

"They are not a defendant in this case," Pearlstine said, pointing to the fact that Miller alone, and not the newspaper, is under subpoena at the Times. Today, the newspaper said it had received a subpoena but had no records to turn over to the special prosecutor. Unlike Cooper, Miller never wrote a story on the Plame outing, but has claimed she was doing reporting on it.

Pearlstine, who announced Thursday morning that Time Inc. would hand over the documents, said such a move could keep Cooper out of jail. Along with Miller of The New York Times, Cooper has been held in contempt of court by U.S. District Court Judge Thomas Hogan for refusing to disclose the source who leaked the identity of CIA Agent Valerie Plame. Cooper and Miller were ordered by Hogan to reveal the source by July 6.

"The special counsel conveyed that if he had the [documents] file it might influence his feelings about the need for Matt's testimony and incarceration," Pearlstine said, referring to the Wednesday hearing where Hogan set the deadline for source information.

Pearlstine said the transfer of the documents was being handled by Time Inc. attorneys who were in touch with the special prosecutor. (Time attorneys have not returned calls seeking comment.) He declined to say specifically what the documents included, noting only that they are "the kind of typical back-and-forth between reporters, writers, and editors putting together a story."

He told E&P the decision by the U.S. Supreme Court on Monday not to hear the appeal of the contempt order made it clear to him that they did not want to alter the 1972 Branzburg vs. Hayes decision, which had ruled against a reporter's source privilege if other sources for information have been exhausted.

"The Supreme Court [on Monday] was reaffirming the Branzburg decision," he said. "I could not make the case in this decision to defy a Supreme Court decision. It was the appropriate journalistic thing for this organization to do."

He also pointed to The New York Times' assertion in the early 1970s that it would not have published the Pentagon Papers had the Supreme Court ruled against publication.

When asked if Time could really be accused of being above the law by invoking a confidential source protection that reporters have exercised for decades, Pearlstine said, "Confidentiality does not legitimize keeping sources from a grand jury. If everyone gets to decide that their belief puts them above the law, the consequences seem obvious."

In response to critics who have said giving up a confidential source sets a worse precedent, Pearlstine said, "everyone has to make their own decision. My decision was based on what I thought was the right thing to do for Time Inc."

When asked if this action might reduce the willingness of sources to come to Time reporters in the future, Pearlstine said, "there is some risk of that, but if what we have to do is break the law to keep confidential sources that is a risk I am wiling to take."

He also said the magazine would continue to protect confidential sources in the future: "We may have a case come along where we have a confidential source and we will again take it to the Supreme Court." However, he did not say what would happen if the Supreme Court again declined to hear the case.