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Reporters Await Fallout of Not Naming Sources

Two journalists facing jail time are to find out whether the high court will hear their case.

June 26, 2005|James Rainey | Times Staff Writer

For two prominent journalists at two of America's top publications it's come to this: pondering the advantages of home confinement over federal prison, hearing warnings about jail house food and institutional underwear, and listening to colleagues joke about the possibility of a presidential pardon.

Matthew Cooper of Time magazine and Judith Miller of the New York Times expect to learn Monday whether the U.S. Supreme Court will hear their case.

If the court declines to review the case of the two journalists -- held in contempt by a lower court for declining to identify their confidential sources -- they could land in jail within days and be forced to stay there for as many as 18 months.

The high court's acceptance of the case would mean a reprieve, at least until a final ruling, likely to come next year.

Cooper and Miller have been the most prominent in a recent pageant of journalists jailed or fined for ignoring court orders to reveal sources. Cooper has gained acclaim as Time's dogged, wisecracking White House correspondent; Miller has been praised, and criticized, for pushing forward stories about weapons of mass destruction.

Many in their profession, and outside it, see the case as a harbinger of future journalistic freedoms.

Bill Keller, executive editor of the New York Times, recently described how a colleague explained to a group of Russian journalists visiting the Times how Miller might go to jail for refusing to reveal the identity of confidential sources.

"The Russians were flabbergasted," Keller said, "since they have grown up regarding our freedoms with envy."

But journalists should not be the only ones concerned about the possible jailing of the reporters, Keller said in an e-mail response to questions on the case.

"I think the likely consequence, if reporters are not allowed some protection, will be an erosion of the public's ability to know what the government and other powerful institutions are up to," Keller said. Sources would not dry up entirely, he said, but he worried that "some witnesses of wrongdoing will be intimidated into silence, and some important stories will not be told."

Chances that the high court will take the case received a boost last month when attorneys general in 34 states and the District of Columbia urged a review. The states' chief law enforcement officers could be especially persuasive in the case because they typically fight against any limits on their access to witnesses.

The bipartisan group, which included 14 Republicans, said lower courts had issued a welter of confusing and contradictory rulings that only the Supreme Court could help clarify.

"A free and open democracy requires a free and open press," said Greg Abbott, the Republican attorney general of Texas. "Texas and virtually every other state in the nation recognize some form of a reporter's privilege, and I urge the Supreme Court to do the same."

The convoluted series of events that could put Cooper and Miller in jail began to unfold two years ago, when retired diplomat Joseph C. Wilson IV accused President Bush of "misrepresenting the facts on an issue that was a fundamental justification for going to war."

The former ambassador was one of the first to debunk Bush's accusation in the 2003 State of the Union address that Saddam Hussein had sought uranium in Africa for nuclear weapons.

The administration made a concerted effort to undermine Wilson's charge. Sources supporting Bush said that Wilson had made a cursory review in Niger and that he was able to make the trip only because of nepotism by his wife, a CIA official assigned to monitor weapons of mass destruction.

These claims were floated to several reporters, but columnist Robert Novak was the first to name Wilson's wife, Valerie Plame, as a CIA operative.

That, in turn, attracted the attention of then-Atty. Gen. John Ashcroft, who ordered an investigation into whether administration officials broke the law by identifying a covert agent, in violation of the Intelligence Act of 1980. Ashcroft appointed a special prosecutor, Patrick J. Fitzgerald. He has aggressively pursued the identity of the administration leakers.

Several prominent journalists who worked on the Plame story received subpoenas. A few -- such as Walter Pincus of the Washington Post and Tim Russert of NBC -- avoided the possibility of jail when their sources agreed the journalists no longer had to keep their identities secret. It remains a mystery whether Novak had to testify. He has declined to comment.

Miller would not ask her sources to waive their anonymity. She said intelligence officials might feel coerced into admitting they had talked to a reporter. Cooper initially answered the prosecutor's questions, with the agreement of one of his sources, but the reporter declined to answer when Fitzgerald came back for more information.

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