October 16, 2004
A prosecutor's investigation into an apparent attempt by the Bush administration to punish a political opponent by revealing classified information has veered terribly off course. It threatens grievous harm to freedom of the press and the vital protection it provides against government misconduct.
The reality of the threat was driven home, quite personally for us, last week, when a federal judge in Washington sentenced a Times reporter, Judith Miller, to up to 18 months in prison for refusing to testify before a grand jury. The panel is looking into who gave Robert Novak the name of a covert Central Intelligence Agency operative, Valerie Plame, for publication in his syndicated column. Ms. Miller, who never wrote about the C.I.A. officer, was asked to describe any conversations she had with a specified government official. The danger was reinforced again on Wednesday, when Judge Thomas Hogan ordered a prison sentence for a Time magazine reporter, Matthew Cooper, in the same case.
The sentences have been stayed pending a consolidated appeal, expected to be heard next month. The specter of reporters' being imprisoned merely for doing their jobs is something that should worry everyone who cherishes the First Amendment and the essential role of a free press in a democracy.
Mr. Cooper, who wrote an article in which he said "some government officials" had identified the C.I.A. official, earlier testified about his conversations with Lewis Libby, Vice President Dick Cheney's chief of staff, after Mr. Libby explicitly waived confidentiality. Ms. Miller declined to testify, or to seek a waiver, on the basis that consent granted under a threat of firing cannot be considered truly voluntary. After Mr. Cooper testified, the prosecutor issued yet another subpoena and demanded that he identify other sources. Mr. Cooper properly refused to do so on First Amendment grounds.
There are other issues at play, chief among them a decision by a United States attorney, Patrick Fitzgerald, to compel Ms. Miller to disclose her contacts with government officials even though she never wrote an article about the controversy. Mr. Fitzgerald has also subpoenaed Ms. Miller's phone records in a different investigation, raising at least a perception of harassment, or that Mr. Fitzgerald may be trying apply pressure in the second situation to gain leverage in the first.
It remains extremely puzzling that Mr. Novak, who originally published Ms. Plame's name, appears to be in no jeopardy. Mr. Novak has remained oddly silent about the jail sentences his colleagues face for defending principles that also protect him.
Judge Hogan ruled that a reporter's privilege does not exist in a grand jury setting. He also said the prosecutor had met the standards that courts generally apply before ordering a reporter to disclose confidential sources. There are reasons to doubt that conclusion, but the secrecy of the prosecutor's filings makes it hard to be certain. Even the reporters and their lawyers are prohibited from seeing the prosecutor's affidavits.
No matter how journalists' privileges are calibrated, Supreme Court precedent protects them from harassment and heedless prosecutorial fishing expeditions like this one. The situation points to the wisdom of state laws that recognize and protect a special relationship between journalists and their sources. Congress should follow their lead.
From: http://www.nytimes.com/2004/10/16/opinion/16sat2.html?ei=5090&en=86e00da608e86f57&ex=1255665600&partner=rssuserland&pagewanted=print&position=
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