Published July 07, 2005
Two reporters who had been threatened with jail time for refusing to reveal their sources in the leak of a CIA official's identity were headed for two very different fates on Wednesday.
Fellow reporter Matt Cooper (search), of Time magazine, is a free man after abruptly changing his mind and agreeing to testify about the source of Plame's identity. As recently as last week, Cooper refused to hand over his e-mails to and notes on his source. Over his objections, Time magazine gave them to Special Counsel Patrick Fitzgerald (search) anyway.
"Even though the prosecutor has all that information, I was prepared to go and remain in civil contempt because I had given my word to my source for two years, which I have kept," Cooper said after the hearing.
"This morning, in what can only be described as a stunning set of developments, that source agreed to give me a specific, personal and unambiguous waiver to speak before the grand jury," Cooper told reporters outside the Washington, D.C., courthouse.
Miller was taken into federal custody, where she will remain until October or until she agrees to tell a grand jury her source, U.S. District Judge Thomas Hogan said. She had faced up to 18 months in jail for refusing to testify. Her attorney had asked for home confinement because of health reasons.
"If journalists can't be trusted to honor promises of confidentiality, then journalists can't function and there is no freedom of the press," Miller told the judge. "I do not make confidentiality promises lightly, but when I do I keep them."
But Judge Hogan said that by sticking to her principles, Miller was breaking the law.
"I have a person in front of me who is defying the law and in actuality may be obstructing justice," he told the court.
Hogan said he was not sending Miller to jail to punish her, but to convince her to cooperate.
"There is still a realistic possibility that confinement might cause her to testify," he said. Miller has long held that she would never hand over her source's identity.
"I am ready to accept your ruling," Miller said before being led away by court marshals through a door close to the judge's bench.
Miller hung her head low and did not look at spectators in the courtroom. She embraced one of her attorneys and shook the hands of the others before being escorted from the court.
Miller had asked that she not to be placed in the D.C. jail. Later in the day, she was seen entering the Alexandria Detention Center in Virginia, the federal facility where convicted terrorist Zacarias Moussaoui (search) resides.
What About Bob?
Cooper and Miller were held in contempt last fall for refusing to comply with federal subpoenas demanding they reveal the person who told them Plame's name.
The law Fitzgerald was using to compel Cooper and Miller to cooperate, the 1982 Intelligence Identities Protection Act, makes it a crime to knowingly reveal an undercover agent's identity. The law was intended to curb what in the 1970s was a rash of outings of undercover agents' identities. In 1975, Richard Welch (search), the CIA station chief in Athens, was gunned down after a former fellow agent, Phillip Agee (search), revealed his identity.
Plame's name first hit the nation's newspapers when syndicated columnist Robert Novak revealed she was the wife of former ambassador Joseph Wilson (search), whose criticism of President Bush's claim that Iraq had attempted to purchase yellowcake uranium in Niger had been published in The New York Times.
Two months later, the CIA asked the Justice Department to investigate whether Novak's sources had broken the law by revealing Plame's identity.
The investigation is built on the possibility that the leaker or leakers acted maliciously. Opponents of the Iraq war charge that a Bush administration official disclosed Plame's identity to Novak in retaliation for Wilson's editorial.
While Cooper and Miller have for more than a year been squeezed to name names, it is not known if Novak cooperated with Fitzgerald or to what extent. The rare occasions on which he has discussed the case have been to say that he has been advised not to discuss the case.
"This smells of a political fight," said Jane Hall of the School of Communication at American University and a panelist on "FOX News Watch."
"What's the point of prosecuting Judith Miller if the source is known, or at least the Time magazine source is known?" she asked.
Hall said it was likely Miller was going to jail not just to keep mum on her source but also to protect a principle many journalists depend on, and that the case from the prosecution's standpoint had turned into a "fishing expedition."
"There are so many terrible ironies about this. Democrats wanted a special prosecutor probably in part to embarrass Republicans, and now you have members of the media going to jail to protect a Bush administration source," Hall said. "Why the special prosecutor continues to pursue [the reporters] is a question."
The prosecutor has released very little information about the case. He has given no indication why, if he knows who Cooper's source is, he continues to keep aim at Miller rather than shift the investigation to the leaker.
However, the pressure on Miller to reveal her source may also indicate that more than one official revealed Plame's identity to reporters, which further complicates an already confounding case.
Even so, a reporter being carted off to jail is a rare sight in the United States, and both Cooper and Miller have argued that breaking deals would chill future sources' willingness to speak to them about the hidden inner workings of government.
"It's obvious sources will dry up," said FOX News legal analyst Judge Andrew Napolitano.
Napolitano agreed that the investigation was smelling more of politics.
"Many people in Washington, D.C., have asserted they knew who Valerie Plame was [before Novak's column]. In fact, they knew it from her husband. If the government no longer has an interest in protecting the identity of the person, then the [leaker] has not committed a crime," Napolitano said.
Charles Davis, executive director of the Freedom of Information Center, said he also is disturbed by the lack of transparency in this case.
"There might have been a crime but then you have a lot of people saying there was no crime at all. That's what makes it so difficult to write or opinionate about this," Davis said. "It's political soap opera at its highest."
Rules on Reporters' Privilege Murky
On June 27, the Supreme Court declined to intervene in the case and clarify what protections, if any, journalists should be afforded from federal subpoenas. Currently no federal shield law exists allowing reporters to protect their sources. Forty-nine states plus the District of Columbia have some form of a shield law on the books.
However, in practically all cases reporters have no privilege when they are witnesses to a crime, such as murder.
Floyd Abrams, a First Amendment authority and Miller's attorney, said after the hearing he did not know if a crime had been committed in the leak, and implied that Miller could not be accused of helping cover one up.
"We can't know if there has been a crime," he said. "We have reason to think from talking ... that this is not the sort of situation which the Framers had in mind, but beyond that if a reporter promises confidentiality the situation may be one in which the reporter has relevant evidence. That comes with the territory."
Media critic Norman Solomon, who has accused Miller of irresponsible reporting on Iraq's weapons of mass destruction, said her willingness to go to jail was "worthy of praise.
"The First Amendment is the only place in the Constitution that specifically protects a job category," Solomon said. "Without the free circulation of information and ideas, the body politic becomes sluggish and thickens."
Miller said she refused to reveal her source because she thought the source had been coerced into signing a waiver. Cooper said he was prepared for prison had the source not called him on the phone while he was on his way to the hearing.
"Let me make it entirely clear: I am with Judy that these government-issued waivers that the prosecutors have been handing out are not worth the paper they are printed on," Cooper said. "They are just not voluntary if your boss hands you something and says, 'Sign it.' It's coercive."
Late last week, Time magazine handed Cooper's notes over to Fitzgerald despite the reporter's objections.
"When the courts rule that a citizen's obligation to testify before a grand jury takes precedence over the press's First Amendment right, to me, going against that finding would put us above the law," editor in chief Norman Pearlstein said.
Solomon said Pearlstein's justification for handing over the notes was wrongheaded.
"If Cooper caved, it was after a lot of the ground was cut up from under him by Time Warner," he said, referring to the magazine's parent company. "Pearlstein's pitch was that as journalists we're not above the law. [But] it doesn't mean we don't have the option to think for ourselves and stick to journalistic principles even though we're under legal duress."
Rep. Rick Boucher (search), D-Va., said the case underscored the urgent need for a federal reporter's shield law.
"The public's right to know is at stake," he told FOXNews.com. "In a situation where sources cannot be assured that reporters can maintain their confidentiality, the more that sources see reporters going to jail, the less confidence they will have and the less willing they will be to bring important matters to light."
Boucher said he knows of broad, bipartisan support for a federal shield law bill he co-sponsored with Rep. Mike Pence, R-Ind., and that he expected it to pass through committee unanimously this year.
Cooper and Miller's predicament may be the most high profile of a recent wave of journalists being pressured to reveal sources, but some observers believe it is a poor test case for reporters' privilege.
"This is not a paradigmatic reporters' privilege case," said Michael Overing, a media law attorney. As for those who are hoping the case establishes clearer guidelines on reporters' privilege, Overing said don't count on it.
"It would be nice to have a cleaner case where you've got someone on the inside leaking information that is particularly damning," he said. Overing, who also teaches at the University of Southern California's Annenberg School of Communication, said he believes Cooper and Miller's case is quite different from that of Deep Throat.
For one thing, it is more likely that the source in Cooper and Miller's case was guilty of wrongdoing, rather than someone who was blowing the whistle on a cover-up or crime, as was the case in Watergate.
If this is the case, Miller is in the unenviable position of doing time to protect a government official who was acting on a vendetta.
"There's always this downside risk that if a reporter is being sent to jail for refusing to give over information ... that they're going to jail for the wrong reason," Overing said of that possibility. "It's a fact of life for a reporter, but it can create a tremendous chilling effect."
Still, that Cooper and Miller essentially stood by principles widely shared among journalists ought to comfort the public, said Lucy Dalglish, executive director of the Reporter's Committee for Freedom of the Press.
"On the bright side, I think forces in the public will be reassured that journalists are willing to go to jail and keep their promises," Dalglish said.
But, she added, "I think what [journalists are] also going to see is another increase in the number of subpoenas served in federal court."