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 Judith Miller is a former reporter for The New York Times and author of four books on the Middle East, biological weapons and the Holocaust. For information on her prosecution for refusing to reveal sources to federal prosecutors, see the news section of this Web site or the Reporters Committee for Freedom of the Press.
In this section: • Judy Speaks in Brazil • Iraqi Militants Becoming Citizens • Intelligent Policing Comes to New Jersey • Best of the Web -- I've Got a Secret • The Other Terrorism • WHAT I LEARNED AT 'ANTI-JIHAD U' • FBI VS. THE NYPD: Behind the Latest Flap • Anti-terrorism in paradise: Lacking funds and manpower, Bratton's war on terror is based on the principle of sharing. • From the Shores of Tripoli • Book Review: George Tenet's At the Center of the Storm
 Germs: Biological Weapons and America's Secret War by Judith Miller, William Broad, Stephen Engelberg Simon & Schuster, 2001  God Has Ninety-Nine Names: A Reporter's Journey Through a Militant Middle East by Judith Miller Simon & Schuster, 1996  Created and maintained pro-bono by Joshua Tanzer, web developer and journalist in New York City. • Resume • Web site • Contact |
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Magazine Weighs Turning Notes Over to Feds New York Times, June 29, 2005 WASHINGTON (AP) -- Time magazine is considering turning over to federal prosecutors notes from a reporter who says he'll go to jail rather than divulge sources about the leak of an undercover CIA officer's name. The possibility emerged Wednesday as reporters Matthew Cooper of Time and Judith Miller of The New York Times defied a judge who found them in contempt last October for refusing to disclose their sources in the leak of the identity of CIA officer Valerie Plame. The Supreme Court on Monday refused to hear the reporters' appeal. U.S. District Judge Thomas Hogan reluctantly agreed to hold a hearing next Wednesday to consider last-ditch arguments from lawyers for the reporters on why they should not be sent to jail. The judge expressed skepticism that any new arguments would change his mind. ''It's curiouser and curiouser; I don't understand'' why the reporters are asking for more time, Hogan said. Special counsel Patrick Fitzgerald, the U.S. attorney in Chicago, has been investigating who in the Bush administration leaked Plame's identity days after her husband, former Ambassador Joe Wilson, publicly undercut the president's rationale for invading Iraq. Time magazine's lawyers revealed that the company is considering turning over documents sought by the grand jury, a step that Cooper said he hopes the magazine does not take. Fitzgerald said that the documents are Cooper's notes of his interviews. ''On balance, I think I'd prefer they not turn over the documents but Time can make that decision for itself,'' Cooper said outside the courthouse. Theodore Boutrous, an attorney representing Time magazine, told the judge, ''We don't want to reargue this case.'' The magazine hopes to ''avoid this crisis and journalists going to jail,'' Boutrous added. Robert Bennett, representing Miller, told the judge in asking for more time that ''it's a big step to put two people in jail who have committed no crimes.'' After Hogan held Miller, Cooper and the magazine in contempt, an appeals court rejected their argument that the First Amendment shielded them from revealing their sources. On Monday, the Supreme Court refused to consider the case. Expressing his impatience, Hogan said, ''It seems to me the time has come.'' ''Much more delay and we will be at the end of the grand jury,'' Hogan said. The grand jury investigating the leak expires in October and the reporters, if in jail, would be freed at that time. Original article Posted by Aaron Selverston | June 29, 2005 More reaction to the Supreme Court decision DALLAS MORNING NEWS: Silencing Freedom: If judge sends reporters to jail, everyone loses Judith Miller and Matthew Cooper may not seem like they have your freedom on the line when they march into federal court today in Washington. But if Judge Thomas Hogan sentences the two reporters to jail for refusing to identify their sources, your ability to fathom your own government diminishes. The Supreme Court had a rare chance to protect your right to know by standing by them but took a pass in declining to rule on the most important press freedom case in a generation. Full article USA TODAY: Twilight zone for reporters Two years later, the result falls somewhere between mysterious and bizarre. No one has been indicted, and Novak is oddly detached from the case. Instead, the prosecutor is threatening two other reporters — Matthew Cooper of Time and Judith Miller of The New York Times— with jail if they won't reveal names of confidential sources. On Monday, the two reporters came one step closer to incarceration after the Supreme Court declined to hear their pleas that the First Amendment entitles them to protect the identity of their sources. At this point, just about no one involved in the Plame affair looks good, except for Cooper and Miller, who are refusing to break their word. ... If one reporter is forced to reveal a confidential source, then no reporter — and far worse, no whistleblower or other source — is safe. Whistleblowers like Watergate's "Deep Throat" will hesitate to expose information that benefits the public but puts them at risk. ... Is the public served? Surely not by turning reporters into snitches. They're supposed to be watchdogs on government. Full article PHILADELPHIA INQUIRER: No shield for reporters This case is wacky. Full article MIAMI HERALD: High court's inaction a blow to free speech Reporters aren't above the law, but they shouldn't have to decide between upholding the traditional privileges of the First Amendment and professional martyrdom. Full article ORANGE COUNTY REGISTER: Refusal to hear case puts new emphasis on need for a federal 'shield law' The U.S. Supreme Court's refusal to hear the case of two journalists who face prison time for not revealing their sources to federal investigators has caused considerable concern in America's newsrooms. The issue has far broader implications than for journalists. It affects all Americans who value serious news coverage. Full article Reprinted article ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE: US should drop reporter subpoena in leak probe-OSCE VIENNA (Reuters) - U.S. Attorney General Alberto Gonzales should drop a subpoena against two U.S. reporters who face prison if they do not reveal secret sources, Europe's biggest rights watchdog said on Wednesday. The U.S. Supreme Court on Monday upheld a court ruling that the two journalists should be jailed for refusing to reveal confidential sources to a grand jury investigating the leak of a covert CIA operative's name to the news media. "A journalist's right to freely access information and deal with sources in confidence is paramount for free reporting and discussion of public issues," Miklos Haraszti, media freedom chief at the Organization for Security and Cooperation in Europe (OSCE), said in a statement. Full article SEATTLE POST-INTELLIGENCER: Free Press: Jailing the truth If Richard Nixon only had the Rehnquist court, he might well be a venerated president now and "Deep Throat" nothing more than a high-class porno flick. Journalists' use of anonymous sources can be abused, but truth outing often ultimately requires that a government snitch be able to talk to a reporter with absolute confidence that his or her identity won't be revealed. Full article NEWSDAY: Court’s inaction concerns journalists Reporting on the inner workings of the federal government became more difficult yesterday, experts said, after the U.S. Supreme Court declined to hear the case of two journalists who are facing prison for refusing to identify unnamed sources. Journalism advocates predicted that whistle-blowers who request anonymity in return for divulging critical information would stop talking to reporters. This in turn would hamper news organizations' ability to investigate controversies such as the treatment of terrorism suspects at the U.S. detention center in Guantanamo Bay. "What this means is sources will dry up and citizens will be unable to make informed decisions," said Lucy A. Dalglish, executive director of the Arlington, Va.-based Reporters Committee for Freedom of the Press. "I've heard from several Washington bureau chiefs that sources are refusing to talk because they don't believe journalists, faced with the prospect of going to jail, will honor promises to keep their sources' identity confidential," she added. Full article DENVER POST: Congress should enact shield "Clearly there's a reversal of the trend on upholding reporters' privilege," said Denver First Amendment attorney Tom Kelley. Federal courts are split on the issue. The high court's denial of review may be "simply a reluctance to take on a constitutional case when a legislative solution \[a federal shield law\] is in the works," Kelley said. "It is important that we ensure reporters certain rights and abilities to seek sources and report appropriate information without fear of intimidation or imprisonment," says Sen. Richard Lugar, R-Ind., the federal shield bill's top sponsor in the Senate. "This includes the right to refuse to reveal confidential sources." A federal shield law would ensure that officials guilty of misdeeds can't hide in the shadows with impunity. Full article REPORTERS WITHOUT BORDERS: Reporters without Borders denounces a "retrograde and freedom-curtailing decision" It is the American people's right to be informed that is at stake. Full article WISCONSIN STATE JOURNAL: Reporters deserve praise, not jail The old logic "don't kill the messenger" is apparently lost on the U.S. Supreme Court. ... If they did divulge the names, future whistleblowers might not come forward because they wouldn't know for sure if a reporter's word to protect them was still good. That would surely make it harder for the press to uncover bad things in government and elsewhere in society. The Supreme Court sadly took a pass on the reporters' pleas for help this week. Instead of throwing the reporters in jail, the lower court and prosecutor should now back off and concentrate on the real criminals, if they even exist. Full article CINCINNATI POST: A most perplexing high court This has been the most baffling Supreme Court of the United States in memory. Ever since its current cast of characters settled into place, this court cannot decide whether it is - in the old phrase - "fish nor fowl nor good red herring." It has alternately infuriated Democrats and Republicans with its decisions. This most recent session, which ended Monday and was likely the last session during which these nine justices will serve together, was no exception. Full article AUGUSTA FREE PRESS (VA.): Our view America is under attack, no question. But in a key instance, the enemy is us. The United States Supreme Court refused on Monday to take the case of two journalists who have been held in contempt of court for refusing the divulge the source who had leaked the identity of an undercover CIA agent to them. ... Those who agree with the powers-that-be are protected at all costs, even when their actions endanger the lives of special agents and the many people who work with them to protect our national security. Those who disagree are subject to time in prison for ... what, really? Full article NAPLES DAILY NEWS (FLA.): Leak investigation: Reporters need a 'shield' By Scripps Howard News Service Just because the Supreme Court says it's legal doesn't make what's happening to Matt Cooper and Judith Miller any less wrong. Full article THE REPUBLICAN (MASS.): Protecting reporters informs the citizenry Sometimes people will not talk to reporters unless they are promised in advance that their names will not be revealed. Sometimes that's the only way for the citizenry to find out what is happening at the highest levels of government. There has got to be a federal law that allows reporters to honor such a pledge. Full article ST. PETERSBURG TIMES (FLA.): A threat to the press and the public While those of us in the news business find the prospect of Judith Miller of the New York Times and Matthew Cooper of Time magazine spending time in jail on civil contempt charges to be a serious constraint on investigative reporting, the general public also has a big stake in this fight. When the press is intimidated and reporters can no longer guarantee anonymity to sources, the vital role of the press in checking the power of government is seriously harmed. Despite the urging of attorneys general from 34 states and the District of Columbia, the U.S. Supreme Court on Monday refused to take up the appeal of Miller and Cooper. Full article MORNING CALL (PA.): Court's refusal to hear reporters' appeal reaches new heights of unfairness Some in a hyper-political nation may get satisfaction from seeing reporters behind bars. That's short-sighted. Eventually, intimidation of the press hurts news readers and viewers, too. Full article VENTURA COUNTY STAR (CALIF.): Need shown for shield law: Ruling puts journalists in limbo This investigation, wherever and whenever it winds up, will be even more beneficial if it galvanizes Congress to pass a federal reporters' shield law like those in most states. The lawmakers might even want to name the law after Mr. Cooper and Ms. Miller. Full article Posted by Joshua Tanzer | June 29, 2005 William Safire: The Jailing of Judith Miller New York Times, June 29, 2005 LEGEND has it when Henry David Thoreau went to jail to protest an unjust law, his friend, the philosopher Ralph Waldo Emerson, visited him and asked, "Henry, what are you doing in here?" The great nature writer replied, "What are you doing out there?" ... What evidence of serious crime does he have that makes the testimony of Judith Miller of The New York Times and Matthew Cooper of Time magazine so urgent? We don't know - eight pages of his contempt demand are secret - but some legal minds think he is falling back on the Martha Stewart Theory of Prosecution. That is: if the underlying crime has not been committed, justify the investigation by indicting a big name for giving false information. Thus, if the reporters resist the coercion of the loss of their freedom, the prosecutor can blame them for his inability to go to trial on the "heavy" charge. But if they cave in, he can get some headlines on the ancillary charge of false statements. (I have known Judy Miller, a superb and intrepid reporter, for a generation; she'll never betray a source.) The principle at stake here is the idea of "reportorial privilege," embraced in shield laws in 49 states and the District of Columbia, but not in federal courts. That privilege not to testify - held by lawyers, members of the clergy, spouses and others - gives assurance to whistleblowers that information confided to a reporter revealing corruption or malfeasance in government will not result in loss of job or more severe retaliation from on high. (Most of the states' attorneys general, recognizing the value of press leads in law enforcement, strongly supported the reporters in this case.) ... Here's what needs to be done now: 1. The judge should resist the prosecutor's pressure for coercive, lengthy and possibly dangerous confinement. Judy won't crack and should not be made to suffer. 2. The prosecutor should submit an information bewailing his witness difficulties in fingering sources in false denial, but showing why no major national-security crime had been committed. 3. Mr. Novak should finally write the column he owes readers and colleagues perhaps explaining how his two sources - who may have truthfully revealed themselves to investigators - managed to get the prosecutor off his back. 4. The Congress should urgently hold hearings on shield bills to conform federal practice to the states' laws based on Congress's 1975 directive to the Supreme Court to apply "reason and experience" to extending privilege - which the court did in its 1996 Jaffee decision to psychotherapists. The contempt epidemic is spreading fast. Yesterday, a federal appeals panel in the District of Columbia followed up the Supreme Court flinch by forcing a New York Times reporter and three other journalists in a different case to burn their sources or be sentenced. Along with Judy and Matt, these endangered journalists can look at plumber-prosecutors, smirking media-bashers and the wimps taking official handouts and ask: "What are you doing out there?" Original article Posted by Joshua Tanzer | June 29, 2005 As Jail Looms, Judy Miller Launches Web Site Editor & Publisher, June 28, 2005 By Joe Strupp NEW YORK On the same day that the U.S. Supreme Court declined to hear Judith Miller's appeal of a contempt-of-court order for refusing to name a confidential source, The New York Times reporter launched her own Web site, www.judithmiller.org, which she contends will help her publicize the case. "It is supposed to call attention to the case," Miller told E&P Tuesday morning via cell phone as she was rushing to the office. "I put it up starting yesterday. It will help bring attention to the case and the issues that the case raises." Original article Posted by Joshua Tanzer | June 28, 2005 Reaction to the Supreme Court's decision THE NEW YORK TIMES: [Supreme Court] Strikes a Blow at a Strong Press The nation's news audiences as much as its journalists suffered a harmful setback when the Supreme Court refused to review the case of two reporters who have been threatened with jail for declining to reveal their sources. ... The justices should at least have been offended by the undue secrecy shrouding this case. Even the two threatened reporters and their lawyers were denied access to the prosecutor's secret affidavits explaining his reasons for demanding that confidential sources be disclosed. American history is full of examples of whistle-blowers who were able to inform the public of malfeasance only through reporters who were able to guarantee them confidentiality. The federal courts' assault on this tradition could have a chilling effect on their future willingness to speak up. The jailing of reporters for pursuing the truth rings particularly medieval in this information age. We stand with Ms. Miller and Mr. Cooper in defending the word of a working reporter, and the public interest. Full article NEWSPAPER ASSOCIATION OF AMERICA: NAA Calls on Congress to Enact a Federal Shield Law in Wake of High Court Decision Not to Hear Cooper/Miller Case "We are disappointed in the Court's decision not to hear the case," said NAA President and CEO John F. Sturm. "From exposing major safety violations at nuclear plants to rooting out corporate fraud, confidential sources have played a vital role in shining the light of public awareness on the activities of government and the private sector. "If reporters are prevented from getting the real story because their access to confidential sources is restricted, citizens do not receive the information to which they are entitled and the public interest isn't served," Sturm said. "The free flow of information is crucial to a well-informed citizenry and is often the only real-time check on government power." Thirty-one states and the District of Columbia have such "shield" laws in force in state courts, and 17 other states have recognized a reporter's privilege as a result of judicial decisions. However, there is no uniform set of standards that applies in the Federal courts. Thirty-five state attorneys general, including the District of Columbia, recently pointed out to the Supreme Court that the lack of a clear standard of federal protection has undermined state laws. Over the last year and a half, nearly two dozen broadcast and print reporters have been subpoenaed or questioned about their confidential sources. In addition to NAA, more than 80 other media companies and organizations have voiced their support for a federal shield law. Full article ORLANDO SENTINEL: A terrible decision The United States Supreme Court on Monday let stand an onerous attack on the public's ability to monitor its government. Full article WASHINGTON POST: The Specter of Jail By Howard Kurtz Washington Post Staff Writer Tuesday, June 28, 2005; 6:11 AM The chances that the Supreme Court would take the Miller/Cooper appeal were always slim, and yet, it still comes as something of a shock that they, in all likelihood, will soon be headed off to jail. ... It's hard to understand why 49 states (Wyoming is the exception) recognize a reporter's right to protect confidential sources, but not the federal government. Yes, journalists are occasionally jailed or threatened with jail at the state level, but these tend to involve murder cases in which a reporter talked to the suspect or has key evidence. Some members of Congress are pushing for a federal shield law, but I don't think that's at the top of the GOP leadership's list. Full article NEW YORK DAILY NEWS: Thou shalt & thou shalt not Two veteran journalists were brought to the brink of jail yesterday for the offense, if that's what you call it, of behaving honorably. ... The story of how they arrived at this juncture is a case study of a prosecution gone too far. Full article LOS ANGELES TIMES: ... and a Get-Out-of-Jail Key Both journalists may actually go to jail for up to 18 months. This is no joke. But it is ridiculous. Full article SALON: A bitter defeat for the press The Supreme Court's refusal to hear the Cooper-Miller case will do more than hurt two reporters -- it will erode the press's ability to cover sensitive stories. Full article NATCHEZ DEMOCRAT: Journalists need to protect their sources Anonymous sources are used, for the most part, very carefully among reputable journalists. And journalists need to know they can protect those sources - especially when the very government they are often investigating is the government trying to compel them to testify about the sources. Full article FORT WAYNE JOURNAL GAZETTE: Proposed law would shield sources “As the court demonstrated, there is no federal law that protects reporters from having to reveal the identity of a confidential source,” [Rep. Mike] Pence said. “This decision and the inevitable spectacle of American reporters being walked into prison make a powerful case for a federal media shield law.” Pence, who hosted a radio talk show before being elected to Congress, has proposed legislation that would guarantee journalists absolute immunity from being compelled to reveal their sources. Full article INDIANAPOLIS STAR: Non-decision leaves journalists at risk This clash of purposes presented a formidable challenge to the justices at a time of heightened sensitivity about national security. But as we have seen at other moments of crisis, such as the recently recalled Watergate scandal, disseminating vital information in a democracy can require making bargains with sources who, for many possible reasons including physical danger, demand anonymity. Most states, including Indiana, acknowledge this reality in the form of law; too bad the high court could not do likewise and perhaps give direction as to a national standard in the process. Now, hopes rest on the federal shield law being proposed by Indiana Sen. Richard Lugar and Rep. Mike Pence. While not exempting journalists from their obligations as citizens in matters of law enforcement, the legislation would prohibit forced disclosure of confidential sources and restrict subpoenas of journalists. Full article BALTIMORE SUN: A source -- or a criminal An especially frustrating aspect of this case is that much of the evidence - even a large section of an appellate judge's opinion - has been kept secret. There's an irony to that, since the law is coming down so hard on reporters who want to keep their secrets. And it makes it difficult to assess the government's claims that the testimony of Ms. Miller and Mr. Cooper would be so valuable as to justify forcing them to break their promises of confidentiality. In light of that, we're impelled to assume that they are in the right. The Supreme Court ducked the issue; back in the District Court, there's still time for Judge Thomas F. Hogan to set aside what looks like an ill-considered prosecutorial campaign against the two. Full article BARRE MONTPELIER TIMES ARGUS: Curious Case If Miller and Cooper have to serve as much as one day behind bars ... then clearly Americans will have witnessed a gross miscarriage of justice. What won't be so clear is the motive behind the injustice. Fitzgerald needs to tell the public exactly what purpose he is serving. Full article LA CROSSE TRIBUNE: Our view: Action against reporters could have a chilling effect Given that the person who actually revealed Plame's identity does not seem to be facing any consequences, the potential jailing of Miller and Cooper seems overly punitive. There are times when information is not available without offering anonymity to a source — and then keeping that promise. The case could have a chilling effect on gathering the news. Cooper and Miller are being threatened with jail time for doing their jobs. Full article NEWSPAPER GUILD: The Newspaper Guild Scores Federal Government for Journalists' Prosecution "These two reporters have been singled out by federal prosecutors even though many others have covered the issue," Foley said. "That amounts to a selective determination about who is and who is not entitled to protection under the First Amendment. This can only further harm the public's right to know and weaken a key element of our democracy, freedom of the press," she said. "This case in particular is being used as a way to censor journalists, and represents a real abuse of power that will have a chilling effect on reporters, and on the public's ability and right to know about the workings of its government," Foley said. Full article REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS: Reporters Committee disappointed by denial of review in Miller, Cooper appeals The court's decision not to hear the case leaves the status of the reporter's privilege in the federal courts in chaos and means that two reporters who broke no law in speaking with their confidential sources will be sentenced to up to 18 months in prison if they do not testify. Full article Posted by Joshua Tanzer | June 28, 2005 Sulzberger, Miller, and Time Inc. Respond to Supreme Court Setback Editor & Publisher, June 27, 2005 By E & P Staff NEW YORK - In a statement issued this morning following the U.S. Supreme Court decision not to hear the appeal of Matthew Cooper (of Time magazine) and Judith Miller (of The New York Times) in the Plame/CIA case, Arthur Sulzberger Jr., chairman of The New York Times Company and publisher of The New York Times, wrote: "It is shocking that for doing some routine newsgathering on an important public issue, keeping her word to her sources, and without our even publishing a story about the CIA agent, Judy finds herself facing a prison sentence. "That 49 states and many countries around the globe provide broad protection for journalists who have promised confidentiality to their sources, makes today’s decision even more disappointing. And it is doubly painful that the Court rejected our case in the face of the plea of 34 state attorneys general, prosecutors who normally seek journalists’ evidence, that anonymous sources are critical to provide information to the public.” In another statement, Judith Miller said, “I am extremely disappointed. Journalists simply cannot do their jobs without being able to commit to sources that they won’t be identified. Such protection is critical to the free flow of information in a democracy." A Time, Inc. statement read: "We are disappointed that the Supreme Court declined to hear the important issues presented by Matthew Cooper and Time Inc. v. United States of America. "It is important to know whether the First Amendment and the federal common law provide protection for journalists’ confidential sources, as do the laws of 49 states and the District of Columbia. "We and Matt Cooper shall now seek a prompt hearing from the federal district court that first held us in civil contempt. We shall ask Chief Judge Thomas F. Hogan to "reassess the privilege issues. We believe that changes in the status of the Special Prosecutor’s investigation and intervening guidance from the Court of Appeals on evidentiary privileges under federal common law merit such a reassessment. "Statements from the Special Counsel’s office suggest his investigation has changed substantially since last summer, when he presented secret evidence to the district court. There is reason to believe, for example, that the Special Counsel may have determined that disclosure of Valerie Plame’s identity to Robert Novak did not violate the Intelligence Identities Protection Act. If that is correct, his desire to know the sources for a subsequent article by Mr. Cooper and others, that appeared on Time.com, may be solely related to an investigation into whether witnesses made false statements during the course of his investigation into this non-crime. Such an investigation of obstruction of justice or perjury may not rise to the level that justifies disclosure of information from or about a reporter’s confidential sources under federal common law. "Under these circumstances, where the facts appear to have changed and where the appeals court has since elaborated on a reporter’s privilege under common law, Time Inc. and Matt Cooper will ask the District Court to review and reassess its orders. "We think it premature for Time Inc. and Matt Cooper to articulate final positions until Judge Hogan has ruled on our request for review and reassessment." Posted by Aaron Selverston | June 27, 2005 Statement From The New York Times NYTimes.com, June 27, 2005 We are very disappointed in the Supreme Court's determination not to review this very vital and controversial case; we fully support the position of Judith Miller and her decision to honor the commitment she made to her sources. Arthur Sulzberger Jr., chairman of The New York Times Company and publisher of The New York Times, said, "It is shocking that for doing some routine newsgathering on an important public issue, keeping her word to her sources, and without our even publishing a story about the CIA agent, Judy finds herself facing a prison sentence. That 49 states and many countries around the globe provide broad protection for journalists who have promised confidentiality to their sources, makes today's decision even more disappointing. And it is doubly painful that the Court rejected our case in the face of the plea of 34 state attorneys general, prosecutors who normally seek journalists' evidence, that anonymous sources are critical to provide information to the public." Judith Miller said, "I am extremely disappointed. Journalists simply cannot do their jobs without being able to commit to sources that they won't be identified. Such protection is critical to the free flow of information in a democracy." Original article Posted by Aaron Selverston | June 27, 2005 Supreme Court Rejects Appeal in C.I.A. Leak Case by Journalists New York Times, June 27, 2005 By ADAM LIPTAK The United States Supreme Court declined today to hear the cases of two reporters facing jail time for refusing to testify about conversations with their confidential sources. The case now returns to the federal district court in Washington, where its chief judge, Thomas F. Hogan, is expected to hear arguments this week about when and where the reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, will begin to serve their time. The special prosecutor in the case, Patrick J. Fitzgerald, is likely to ask that the reporters be jailed immediately. Lawyers for the reporters may ask Judge Hogan for permission to file additional briefs. "I am extremely disappointed," Ms. Miller said in a statement. "Journalists simply cannot do their jobs without being able to commit to sources that they won't be identified. Such protection is critical to the free flow of information in a democracy." Arthur Sulzberger Jr., the publisher of The New York Times, added: "It is shocking that for doing some routine newsgathering on an important public issue, keeping her word to her sources, and without our even publishing a story about the C.I.A. agent, Judy finds herself facing a prison sentence. "That 49 states and many countries around the globe provide broad protection for journalists who have promised confidentiality to their sources, makes today's decision even more disappointing. And it is doubly painful that the court rejected our case in the face of the plea of 34 state attorneys general, prosecutors who normally seek journalists' evidence, that anonymous sources are critical to provide information to the public." Time Inc. issued a statement suggesting that it had not come to a final decision about whether to comply with the court orders in the case. "We think it premature for Time Inc. and Matt Cooper to articulate final positions until Judge Hogan has ruled on our request for review and reassessment," the statement said. Judge Hogan held the reporters in civil contempt in October for refusing to cooperate in a grand jury's investigation of the disclosure of the identity of a covert C.I.A. agent, Valerie Plame. He ordered them held for 18 months or until the grand jury completes its inquiry, whichever comes sooner. He also ordered Time magazine to pay a fine of $1,000 a day for refusing to turn over related documents. The reporters have remained free during their appeals. In court filings this spring, Mr. Fitzgerald disclosed that, except for his efforts to compel the reporters' testimony, his investigation has been "for all practical purposes complete" since October. Time's lawyers will rely on that disclosure to try to reargue the case before Judge Hogan, the Time Inc. statement said. "We believe that changes in the status of the special prosecutor's investigation and intervening guidance from the court of appeals on evidentiary privileges under federal common law merit such a reassessment," the statement said. "There is reason to believe, for example, that the special counsel may have determined that disclosure of Valerie Plame's identity to Robert Novak did not violate the Intelligence Identities Protection Act," the statement continued. "If that is correct, his desire to know the sources for a subsequent article by Mr. Cooper and others, that appeared on Time.com, may be solely related to an investigation into whether witnesses made false statements during the course of his investigation into this non-crime. Such an investigation of obstruction of justice or perjury may not rise to the level that justifies disclosure of information from or about a reporter's confidential sources under federal common law." Civil contempt is meant to coerce rather than punish. If the reporters agree to talk, they will be freed. The federal regulations governing civil contempt suggest that the local jail, in this case that of the District of Columbia, is the default facility. The United States Marshals Service, which has primary responsibility for supervising people held in civil contempt in federal cases, may choose another facility "due to medical, security or other reasons." Judge Hogan is also free to specify a different place of incarceration. Lawyers for the reporters are likely to propose home confinement or a federal facility other than the District of Columbia jail. A Rhode Island television reporter, Jim Taricani, was sentenced to six months of home confinement in December for refusing to disclose the identity of the person who gave him a videotape that was evidence in an investigation of government corruption in Providence. He was released in April, after serving four months. But Mr. Taricani was a heart-transplant recipient. And he had been held in criminal contempt, meaning his sentence was meant to be punitive. Home confinement in a civil contempt case might not be considered adequately coercive. The case against the reporters arose from the publication of the identity of Ms. Plame's identity by the syndicated columnist Robert Novak, who said "two senior administration officials" had told him the information. It can be a crime for government officials to disclose such facts. Even as Ms. Miller and Mr. Cooper prepare for jail, Mr. Novak remains free. Neither he nor Mr. Fitzgerald will say why that is so. Other aspects of the case remain shrouded in secrecy as well. Mr. Fitzgerald appears to assert that Mr. Cooper, who wrote about Ms. Plame after the Novak column, and Ms. Miller, who never wrote on the subject, have information that may point to criminal conduct by a government official. A 1972 decision of the Supreme Court, Branzburg v. Hayes, held that the First Amendment does not allow reporters to refuse to discuss their confidential sources in the face of grand jury subpoenas. Today's order means the Supreme Court will not revisit that decision for now. It also means that the court will await another case to consider the existence and scope of a protection arising from the federal common law governing evidentiary privileges like those for communications with lawyers and doctors. Under a rule of evidence adopted by Congress in 1975, federal courts are authorized to recognize new privileges in light of "reason and experience." The federal appeals court in Washington upheld Judge Hogan's contempt order in February. The three-judge panel split three ways over the question of whether courts should recognize a privilege under the federal common law, but all three judges agreed that Mr. Fitzgerald had provided secret evidence to the court sufficient to overcome any privilege that might exist. Original article Posted by Joshua Tanzer | June 27, 2005 Supreme Court To Decide This Week On Hearing Plame Case Editor & Publisher, June 20, 2005 NEW YORK Journalists Matthew Cooper and Judith Miller may find out as soon as this week whether the U.S. Supreme Court will hear their appeal of a contempt ruling for refusing to disclose who leaked the identity of a CIA agent to them -- a decision that could send them to jail before the end of the month. The high court is set to consider the reporters' requests for certiorari on Thursday, along with hundreds of other appeal cases, according to Attorney Floyd Abrams, who is representing Miller. He said the justices will discuss the case at their Thursday conference, which essentially ends the court's current session, and likely make their decision known next Monday. "The usual practice would be that they decide at the [Thursday] conference, unless they decide to put it off and decide in the fall," Abrams said today. "These decisions are usually announced on the following Monday." But, given the interest in this case, a decision could be announced any time after it is made, Abrams said. "The overwhelming amount of cert [requests for appeal] are routinely denied," Abrams said. "There are sometimes a few that are granted; we hope to be in that few." If not, they could be sent to jail within days. He also reiterated his belief that it is harder to get a case heard before the court, than to actually win once you get there. "They generally reverse two out of three cases," Abrams said. "They rarely take cases that they think are properly decided. But sometimes they have not decided themselves." Cooper, a Time magazine reporter, and Miller, who works for The New York Times, each face jail time for refusing to divulge sources in the Plame case. Judge Thomas Hogan of the U.S. District Court held them in contempt last fall for refusing to reveal the source who leaked to them the identity of former CIA agent Plame, whose identity was revealed in 2003 by columnist Robert Novak. Miller and Cooper appealed the contempt order in February to a three-judge panel of the D.C. Circuit Court of Appeals, which denied the request. The case then was appealed to the full D.C. Circuit Court of Appeals, which declined to hear the case in April. Cooper, who had also been represented by Abrams, switched attorneys in late April. He is now represented by Ted Olson, a former Reagan and Bush administration official. With separate attorneys, Miller and Cooper are effectively making their appeals to the high court as two separate cases. Olson said he was optimistic that the court would take the case, saying the justices may want to weigh in on the issue that has already sparked shield laws in 34 states and prompted congressional proposals for a federal sheild law. "They often take cases to clarify confusion under federal law," he said. The original petitions for the high court to consider the cases were filed May 8, with the government's arguments filed May 27. The justices received all of the petitions and briefs June 7, Abrams said. Among the most powerful elements of support for the reporters was an amicus curie signed by the attorneys general of 34 states and the District of Columbia, Abrams says. "It is so counter-intuitive for state attorneys general -- the very people one might think would be upset at losing the benefit of evidence -- to have together said that there is another value so important it outweighs the interest in getting this information. It is a powerful blow in our favor." Abrams said having the case petitioned in two separate arguments may not make much difference, although he added, "it may help some in giving the court two articulations of why they should hear the case." When asked if the reporters would be helped by the court deciding to put off its decision until a new session in October, Abrams admitted it would be good for Cooper and Miller to know they would remain free for several more months. But, he said the case would likely not turn out differently. If the case is put off until the new term, there's a chance a new justice would be appointed by then. Chief Justice William Rehnquist is expected to retire at the end of this term, something Abrams noted would not hurt his client. "The chief justice has not been a big supporter of the notion of any special sort of protection for the press," he said. "He is not someone that we're counting on as a likely vote if the court does take the case. I have no reason to think someone new would be any worse from our perspective." In the event that the court decides during the current session not to take the case, Cooper and Miller would not be hauled off to jail that same day. Abram said at least one more hearing would likely be held before Judge Hogan, who offered the initial contempt ruling, prior to any jailing. He said that could be done within days of the high court's decision. "Judge [Hogan] would likely adhere to his prior ruling and we would talk about what should be imposed and what type of facility they would be in, or if they should be at home," Abrams said. "But the order will have been affirmed. They would not be in jail on Monday, it would be a matter of days or weeks." Joe Strupp (jstrupp@editorandpublisher.com) is a senior editor at E&P. Posted by Joshua Tanzer | June 27, 2005 CFIF Urges Supreme Court to Take Reporters' Contempt Cases Center for Individual Freedom Alexandria, VA -- The Center for Individual Freedom today filed an amicus curiae brief asking the Supreme Court to grant review of a lower court's decision to hold New York Times reporter Judith Miller and Time Magazine correspondent Matthew Cooper in contempt for refusing to reveal their confidential sources to a federal grand jury. "It is long past time for this Court ... to reconsider and clarify whether and when the First Amendment protects newsgatherers from compelled disclosure of their confidential news sources," the brief says. "The right of a free press is at the core of our democracy. Prosecutors just can't be allowed to haul reporters willy-nilly before a grand jury to extract confidential information," said Reid Cox, the Center's General Counsel. "Though we often say the public has a right to know, the press is the conduit for the public's knowledge. If reporters have to fear jail every time they get a confidential tip, we will all know less." The Center's argument that the Court should take the cases rests on two major points. First, lower courts are hopelessly divided on the question of a privilege for reporters protecting their confidential sources. Second, the Center's brief applies the Court's logic from a death penalty decision announced earlier this term. Specifically, the Court said that a "consensus" of states had emerged on the issue in question. The Center's brief points out that 49 states and the District of Columbia now recognize and protect some form of reporter's privilege. Under the Court's own logic, the brief argues, the Court should recognize that the First Amendment protects confidential news sources. The Center also objects to the lower court's reliance on secret evidence to support its decision. "Perhaps the most surprising and objectionable part of the decision below was the court's willingness to uphold the contempt citations against [the reporters] based upon evidence neither they nor their counsel were allowed to examine or afforded the opportunity to rebut," the brief says. The Center for Individual Freedom is a non-partisan, non-profit organization dedicated to defending individual freedoms and rights. The Center has long been a strong defender of the First Amendment. Previously, it filed a similar brief in the case of Vanessa Leggett, an investigative journalist who was jailed for contempt of court for refusing to reveal her confidential sources. Official site Posted by Joshua Tanzer | May 18, 2005 A Case for the Supreme Court Time, May 15, 2005 A Case for the Supreme Court By NORM PEARLSTINE As a rule, we at TIME Inc., publisher of this and many other magazines, believe that we should report the news instead of making it. We also believe in the rule of law, and we do not believe journalists, ours or anyone else's, should be held above it. Sometimes, however, staying out of the news becomes impossible. And sometimes seeking a clarification of our nation's law from its highest court becomes an imperative. We find ourselves in just such a position with TIME Magazine and its White House correspondent Matthew Cooper, both of whom have come under extraordinary government pressure to cooperate in an investigation in ways that we believe are unwarranted and potentially damaging to the free flow of information that leads to accountability in our democracy. As this controversy unfolds, we want you to understand the story behind that story. You may be aware that Cooper, along with Judith Miller of the New York Times, faces the very real possibility of going to jail for refusing to disclose confidential sources to a federal grand jury investigating who revealed the identity of CIA operative Valerie Plame, the wife of former U.S. ambassador Joseph Wilson. Ironically, neither Cooper nor Miller actually outed Plame. . . . We don't risk jail or fines lightly. It is our editorial policy to identify sources by name whenever possible. But sometimes we can obtain information only by promising confidentiality to a source, because many persons with important information won't speak to the press unless they are assured anonymity. Information given in confidence is especially valuable when it contradicts or undermines public positions asserted by governments or powerful individuals or corporations. Without confidential sourcing, the public would never have learned the details of many situations vital to its interests, from Watergate to Enron to Abu Ghraib. . . . We believe we must protect our sources when we grant them confidentiality, an obligation we take seriously. We also believe we must resist government coercion. Put simply, the issues at stake are crucial to our ability to report the news and inform the public. We hope the Supreme Court will hear our case and rule in our favor. As it said many years ago, freedom of the press was established "not for the benefit of the press so much as for the benefit of all of us." Full article Posted by Joshua Tanzer | May 18, 2005 Supreme Court urged to protect reporters from jail time WASHINGTON (AP) — The Supreme Court has been asked to throw out contempt orders against two journalists who refused to reveal sources in the leak of an undercover CIA officer's identity. Lawyers for Time magazine's Matthew Cooper and The New York Times' Judith Miller want the justices to clarify protections reporters have in keeping sources confidential. Cooper's appeal was filed Tuesday; Miller's was made Monday. The Supreme Court will decide ... whether to consider the cases [next fall]. Cooper and Miller face up to 18 months in jail for refusing to testify before a grand jury as part of an investigation into who divulged the name of CIA officer Valerie Plame. Disclosure of an undercover intelligence officer's identity can be a federal crime. Full article Posted by Joshua Tanzer | May 18, 2005 | |||||||
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