With the increase in national security concerns since the Sept. 11, 2001 terrorist attacks, U.S. journalists face an increased likelihood of being seen as government informants with no constitutional right to keep sources confidential or to withhold unpublished materials from prosecutors. Crackdowns on government leaks also threaten the availability of confidential sources.

This scenario was inevitable when the government moved toward greater secrecy following the terror attacks. What once was merely a prediction, however, turned to reality in July 2005 when the first journalist who received terrorism-related leaks, Judith Miller of The New York Times, went to jail for refusing to reveal her sources. But one positive outcome of the subpoena crisis may be the adoption of a "shield law" granting a privilege for journalists to protect confidential sources in federal proceedings.

Subpoenas to journalists

The news media have a long history of fighting subpoenas, especially when those subpoenas seek unpublished material or the names of confidential sources. Reporters fight subpoenas because they do not want to become tools of government. War correspondents fight subpoenas because they do not want their sources in combat zones to believe that they are agents for any government.

Over the years, journalists have had significant, although not consistent, success fighting subpoenas using reporter shield laws in 31 states and Washington, D.C., and the reporter's privilege developed under the First Amendment to protect the news media from unnecessary intrusion. While it varies from jurisdiction to jurisdiction, the privilege generally requires a court faced with a subpoena to a journalist to weigh the subpoenaing party's need for the information sought against the public's interest in maintaining a free and unfettered press. Often enough, the news media have been able to win the balancing contest.

But journalists should be aware that since the terrorist attacks and the war with Iraq, courts may be more likely to decide that the balance falls in favor of disclosure, especially where national security issues are at stake. Leaks of sensitive information to the news media have angered government officials and sometimes the public, prompting a number of investigations. At least nine U.S. courts have faced the issue thus far, and seven of those courts have demonstrated a willingness to force a journalist to give up information in war or terrorism-related proceedings.

Valerie Plame leak investigation

The most alarming leak investigation, in which one reporter has been jailed, another was held in contempt but narrowly avoided jail, and several others unsuccessfully fought subpoenas, involves the leak of undercover CIA officer Valerie Plame's identity. The investigation began after two unidentified senior administration officials revealed Plame's identity to columnist Robert Novak, who published her name in a July 2003 column, and other Washington-area journalists.

Plame's husband, former ambassador Joseph C. Wilson IV, publicly criticized the Bush administration in a New York Times op-ed article for asserting that Iraq tried to buy uranium from Niger. Wilson had traveled to Africa on a CIA mission in 2002 and determined that such a deal was unlikely. The purpose of leaking Plame's identity hinges on political perspective: it was either an attempt to show Wilson was unqualified for the mission, only being chosen because his wife suggested him for it, or it was an act of revenge to punish him for speaking out against the administration.

In September 2003, after an official CIA request for an investigation and calls for a probe from administration critics and others, including The New York Times, the Department of Justice launched an investigation into whether Plame's identity was illegally leaked.

In December 2003, Attorney General John Ashcroft recused himself from the Justice Department's investigation into the leak and Special Prosecutor Patrick J. Fitzgerald, the U.S. Attorney in Chicago, was appointed to head the investigation, which may lead to charges under a federal law that makes it a crime to knowingly leak the name of an undercover officer -- the Intelligence Identities Protection Act of 1982.

In an effort to release reporters from confidentiality agreements with possible White House sources, FBI investigators asked administration officials in January 2004 to sign waivers of their rights to have private conversations with reporters.

On January 22, 2004, the federal grand jury Fitzgerald was using for his investigation issued three subpoenas to the White House, asking the Executive Office of President Bush to produce records of Air Force One telephone calls in the week before Plame's identity was revealed in Novak's column. Also sought were records created in the White House Iraq Group and a transcript of a White House press briefing in Nigeria. One subpoena sought records of White House contacts with more than two dozen journalists and news organizations, including Novak, Chris Matthews, Andrea Mitchell and reporters for Newsday, The Washington Post, and The New York Times.

In May 2004, Fitzgerald sought to question several reporters at The Washington Post, the newspaper reported. In addition, The Los Angeles Times reported that reporters for Newsday were also being asked for interviews. On May 24, NBC's Tim Russert, host of "Meet the Press," and Time magazine reporter Matthew Cooper were subpoenaed to appear before the federal grand jury. Explaining why the network was seeking to have the subpoenas quashed, NBC News president Neal Shapiro said in a statement that "sources will simply stop speaking to the press if they fear those conversations will become public."

Washington Post reporter Glenn Kessler agreed to an interview with prosecutors in June 2004. Kessler stated that he had been urged to discuss conversations he had with Vice President Cheney's chief of staff, I. Lewis "Scooter" Libby. In a statement, Kessler explained: "I face an unusual situation. Mr. Libby signed a waiver in which he asked me to discuss with the Special Counsel whether the Wilson matter was raised in two conversations that I had with him in 2003. Under these circumstances, at the request of my source, I am giving a deposition regarding these questions."

On July 20, Russert and Cooper were ordered to testify after Chief Judge Thomas F. Hogan of the U.S. District Court in Washington, D.C., rejected motions to quash the subpoenas. Russert was questioned under oath by prosecutors on August 7. In a statement, NBC said that Russert only testified about what he said during a conversation with Libby, who had waived his interest in confidentiality and reportedly wanted Russert to testify.

On August 6, 2004, Cooper was held in contempt of court after he failed to comply with the July 20 order. Hogan ordered Cooper to jail and fined the magazine $1,000 per day until Cooper complied with the order. The sanctions were stayed pending appeal to the U.S. Court of Appeals in Washington, D.C., but before the appeal was heard, Cooper reached an agreement with investigators to offer limited testimony. He agreed to testify, according to a statement released by Time magazine that echoed the points made by NBC and Kessler earlier, because the one source the special counsel asked about -- again, Libby -- had waived the confidentiality agreement he had with Cooper. Cooper was interviewed on Aug. 23 by prosecutors and was immediately cleared of the contempt citation.

Washington Post reporter Walter Pincus, who wrote that a Post reporter received information about Plame from a Bush administration official, and New York Times reporter Judith Miller were also subpoenaed to testify in August. In September, Cooper and Time received a new, broader subpoena and Pincus reached a deal with prosecutors. Pincus agreed to limited testimony about conversations with a confidential source who had already revealed himself to prosecutors and granted Pincus permission, but Pincus still did not testify as to the name of the source.

On Oct. 7 and 13, Hogan held Miller and then Cooper and Time in contempt, fined them each $1,000 per day and ordered Miller and Cooper to jail until they testify. The fines and sentences were stayed pending a consolidated appeal.

The U.S. Court of Appeals (D.C. Cir) heard oral arguments on Dec. 8 and released its decision on Feb. 15, 2005, holding that no privilege protects journalists from being compelled to reveal their confidential sources when called to testify before grand juries. The judges unanimously agreed that the First Amendment does not provide a privilege from testimony before a grand jury, but split on the issue of whether a "common law" privilege -- one rooted in previous court decisions, not the constitution -- exists. In any case, all agreed that a common law privilege would have been overcome by the prosecutor by apparently showing that the information was critical and only available from the journalists -- although that part of the court's opinion was redacted from the public version.

Also in February, Ashcroft's replacement as Attorney General, former White House Counsel Alberto Gonzales, recused himself from the investigation. Gonzales had been in charge of the White House's response to the investigation.

A request for reconsideration by the entire court of appeals was rejected on April 19. Miller, Cooper and Time appealed their cases to the U.S. Supreme Court. Briefs asking the court to accept the case were filed May 9 and 10. Two friend-of-the-court briefs were filed by media organizations on May 18, and a coalition of state attorneys general filed a brief in support of the reporters on May 27. The government's brief was filed on May 31. On June 27 the Supreme Court declined to review the case, and it was sent back to Judge Hogan.

Miller and Cooper indicated at a June 29 hearing that they still did not intend to comply with the subpoenas and Hogan set a final hearing for July 6. On July 1, Time Inc. told the court that it decided to comply with the subpoena, and had given Cooper's notes to the grand jury over Cooper's objection.

At the final hearing on July 6, Cooper announced that while he believed the government issued confidentiality waivers were coercive and "not worth the paper they're written on," he had received a "personal, unambiguous, uncoerced" waiver from his source and would testify before the grand jury. Hogan revoked the contempt citation against him. Miller continued to refuse to testify, and was taken into custody on the civil contempt charge. Unless she decides to testify, which she has repeatedly said she will not do, she will remain in prison until the grand jury expires in late October 2005. Fitzgerald has also suggested that he might bring criminal contempt of court charges against her, which could result in a longer sentence.

Cooper testified before the grand jury on July 13, and on July 17 he confirmed for the first time in a Time magazine column that presidential advisor Karl Rove, along with Libby and possibly others, were his sources. (In re Special Counsel Investigation)

Global Relief Foundation leak investigation

The media has so far been more successful in another case involving two figures from the Valerie Plame investigation. A Chicago grand jury is investigating the leak of information about a planned FBI raid on the Global Relief Foundation, an Islamic charity suspected of funding terrorism. Representatives of the charity have said they were tipped off the day before the Dec. 14, 2001, raid by reporters calling for comment. Patrick Fitzgerald, acting in his capacity as U.S. Attorney for Chicago, was denied permission in 2003 by the Department of Justice to subpoena reporters' telephone records. DOJ regulations require that "[a]ll reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media," or for "telephone toll records of any member of the news media." However, in early Sept. 2004, Fitzgerald was granted permission and subpoenaed the telephone records of two reporters, Judith Miller and Phillip Shenon of The New York Times, from the Times' telephone company. It is unknown whether Fitzgerald has obtained the records. The Times filed a lawsuit Sept. 28 to block the subpoena.

On Dec. 1, 2004, the U.S. Court of Appeals in Chicago (7th Cir.) dismissed a libel suit filed by Global Relief against the Times and other news organizations for their reporting on the government's investigation.

On Feb. 24, 2005, a federal district judge in New York City held that the Times had the right to keep its phone records confidential. U.S. District Judge Robert W. Sweet held that the records are protected by a qualified privilege under the First Amendment and under common law, and that prosecutors had failed to overcome the privilege.

"To deny the relief sought by The Times under these circumstances, i.e., without any showing on the part of the government that the sought records are necessary, relevant, material and unavailable from other sources, has the potential to significantly affect the reporting of news based upon information provided by confidential sources," Sweet wrote.

Fitzgerald has appealed the ruling the to U.S. Court of Appeals in New York (2nd Cir.). (The New York Times Company v. Gonzales)

Dr. Steven Hatfill anthrax investigation and Privacy Act lawsuit

Although it is not a government investigation of journalists, a private lawsuit stemming from a federal terrorism investigation has resulted in a number of subpoenas issued to news organizations. Dr. Steven J. Hatfill sued Attorney General John Ashcroft and other government officials under the Privacy Act in federal court in Washington, D.C., over government leaks and being publicly named a "person of interest" in the investigation into the 2001 anthrax attacks that killed five people and sickened 17. Although he has not been charged, Hatfill lost his job as a government contractor and has been unable to find employment since being identified in the investigation.

Hatfill also sued The New York Times and reporter Nicholas Kristof in a separate case for libel over their coverage of the investigation. The libel suit was dismissed in Nov. 2004 but reinstated on appeal on July 28, 2005.

Because the Department of Justice claimed that submitting to Hatfill's discovery requests in the Privacy Act case would hamper the ongoing anthrax investigation, in February 2004 Judge Reggie B. Walton approved the use of news media subpoenas. Hatfill's attorneys initially declined because of anticipated legal challenges by the media. In October, Walton approved their use again, and in December he ordered as many as 100 federal agents to waive any confidentiality agreements they had with the media. Beginning Dec.15, a number of news organizations received subpoenas to provide documents and testimony in the case.

At least 13 subpoenas were served. Four subpoenas -- served on National Public Radio, The Baltimore Sun, CNN and UPI -- were voluntarily withdrawn early on. Another nine subpoenas -- served on ABC, CBS, NBC, The Associated Press, The Washington Post, Newsweek, Gannett Co., The Los Angeles Times, and former Baltimore Sun reporter Scott Shane -- were contested primarily in the U.S. District Court in Washington, D.C. (the Times subpoena was challenged in federal court in Los Angeles). Another subpoena was served in federal court in New York on Don Foster, a professor at Vassar College who wrote about the FBI's investigation.

In late May, after the government made federal employees available as witnesses, the subpoenas against the news media parties were voluntarily withdrawn. They may, however, be served again if Hatfill is not able to obtain the information he seeks from those individuals. (Hatfill v. Ashcroft)

Lynne Stewart "material support" trial

Several reporters from The New York Times, Reuters and Newsday were subpoenaed in June 2004 to testify in the trial of Lynne Stewart, a New York criminal defense attorney charged with providing "material support" to terrorists after she allegedly helped her client Sheik Omar Abdel-Rahman communicate with terrorist followers. Prosecutors insisted that they are only seeking to confirm published information.

Attorneys for all three organizations sought to quash the subpoenas of their reporters. On Aug. 19, with Stewart's criminal trial well underway, U.S. District Judge John Koeltl ruled that Reuters reporter Esmat Salaheddin could be called to testify about his conversation with Stewart, which led to an article saying the sheik no longer supported a cease-fire in Egypt. Salaheddin testified Sept. 13, 2004 about the accuracy of the published story.

Prosecutors dropped the subpoena of Newsday reporter Patricia Hurtado after she successfully argued that it would interfere with her ability to cover the trial as a courts reporter. Joseph Fried of The New York Times, and George Packer, a freelancer for The New York Times were not called to testify before the close of the trial.

Stewart was convicted on Feb. 10, 2005, but has requested a new trial because of bias by members of the anonymous jury. If she is re-tried, the reporters could be subpoenaed again. (U.S. v. Sattar)

John Walker Lindh trial

In the summer of 2002, federal prosecutors wanted to use CNN freelancer Robert Pelton's videotaped interview with American Taliban fighter John Walker Lindh as evidence in Lindh's terrorism trial. Pelton interviewed the injured Lindh in December 2001 in Afghanistan before Lindh was taken into U.S. custody and charged with crimes including conspiring to murder U.S. citizens and contributing services to terrorist group al-Qaida.

Lindh subpoenaed Pelton on June 27, 2002, to testify in a hearing to suppress the videotaped interview as evidence. Lindh argued that Pelton was acting as an agent of the U.S. government during the interview and did not notify Lindh of his right to remain silent, so the videotape was not admissible at trial.

Pelton resisted the subpoena, and several national media organizations, including The Reporters Committee for Freedom of the Press, supported him by urging the court to preserve Pelton's First Amendment right not to testify. U.S. District Judge T.S. Ellis III in Alexandria, Va., ordered Pelton to testify and in his ruling wrote:

"There is no doubt that Pelton's testimony is material to Lindh's non-frivolous argument that Pelton was acting as a government agent at the time he interviewed Lindh, an assertion that Pelton . . . strongly denies."

Judge Ellis's order became moot on July 15, 2002, when Lindh pleaded guilty to two charges of aiding the Taliban and carrying explosives.

Nevertheless, Ellis's published ruling can be used as precedent in future subpoena cases against reporters. In addition to calling Lindh's argument that Pelton was a government agent "non-frivolous," Ellis rejected the argument of the Reporters Committee and other media organizations that the subpoena would label Pelton as a spy and would endanger the lives of war correspondents.

Ellis ruled that reporters are not shielded from testifying when they are not protecting confidential sources or are not a victim of government harassment.

"In my view, there is no privilege, and I don't see the First Amendment as giving newsmen a testimonial privilege that other citizens do not enjoy," Ellis said. (United States v. Lindh)

Brian Regan espionage trial

In another war-related subpoena case, U.S. District Judge Gerald Bruce Lee of Alexandria, Va., was more sympathetic to the media's concerns. On Aug. 8, 2002, Lee rejected an accused spy's attempt to compel a reporter for The New York Times to testify about confidential sources.

Brian Regan, who was accused of espionage, did not show that Times reporter Eric Schmitt had relevant evidence about the charges against Regan, Lee ruled.

"(Regan's) suspicions are insufficient for the court to sanction a fishing expedition," Lee said in court.

Regan, a retired Air Force master sergeant, was arrested in 2001 and charged with trying to sell classified information from American satellites to China, Libya and Iraq. He was convicted on Feb. 20, 2003, and was sentenced in March 2003 to life in prison.

Regan wanted Schmitt to testify about his sources for a July 5, 2002, story that described military plans for a possible attack on Iraq. The story relied on confidential sources.

Regan's attorneys wanted to know whether the sources for Schmitt's story were government officials. Their theory was that the U.S. government could not put Regan on trial for divulging military secrets to Iraq when the federal government might be doing the same thing by leaking its war plans for Iraq to the Times.

Regan's attorneys said they would not ask Schmitt to name the sources. But they wanted to know whether a government official gave him the military document and authorized publication of it. Lee said he did not see how that was any different from asking for the identities of Schmitt's sources.

Regan's attorneys also wanted to know whether Schmitt was given classified information and whether government officials asked Schmitt to name the person who leaked the document.

Lee agreed with Times attorney Floyd Abrams, who argued that Schmitt's article had no connection to Regan's case. But still, Lee said he was not sure that he agreed with Abrams's argument that Schmitt had a First Amendment privilege to protect his sources. (United States v. Regan)

Michael McKevitt Irish terrorism trial

In another case, three Chicago reporters were forced to hand over interview tapes to an Irish terrorism defendant and to U.S. authorities who claimed a national security interest in the case.

Abdon Pallasch and Robert C. Herguth, of the Chicago Sun-Times, and Flynn McRoberts, of the Chicago Tribune, interviewed FBI informant David Rupert for a book they planned to write about Rupert's experiences spying on the Irish Republican Army. Rupert was a witness in a trial against Michael McKevitt, who allegedly lead a terrorist organization known as the "Real IRA." McKevitt's attorneys asked a U.S. court to order the reporters to produce their tapes to them before they cross-examined Rupert at trial.

The reporters objected to the request, but neither the district court nor the federal appeals court hearing the case agreed with their argument that a First Amendment privilege protected their source materials from compelled disclosure. They were ordered to hand over the tapes or go to jail.

Although the underlying prosecution concerned a terrorist faction operating mainly in Ireland, the United States submitted a statement of interest in the case, asserting American security concerns. The government made an unusual request to pre-screen the tapes and redact any sensitive information before their contents were made public at the trial.

United States District Judge Ronald A. Guzman granted the government's request. He called the government's desire to prevent against the public disclosure of national security information a "highly compelling interest." The U.S. Court of Appeals in Chicago (7th Cir.) refused to stay the decision.

On July 4, 2003, Pallasch, Herguth and McRoberts handed the interview tapes over to FBI agents, who reviewed and redacted them before passing them on to McKevitt's attorneys. McKevitt was convicted on Aug. 6, 2003, of directing terrorism.

Although they had already turned over the tapes, the reporters asked the appellate court to reconsider or rehear their case on the issue of whether a First Amendment privilege should have protected their work. The U.S. Court of Appeals in Chicago (7th Cir.) denied the reporters' request for an emergency stay of the order and, in an unusual move, issued an opinion one month later on August 8, explaining that decision. Judge Richard Posner, writing on behalf of the three-judge panel, dismissed any argument for a constitutionally based reporter's privilege, stating that subpoenas to journalists should only be required to meet the general requirement of reasonableness, applicable to all subpoenas. (McKevitt v. Pallasch)

Jesselyn Radack leak investigation

The Justice Department concluded its investigation in September 2003 into whether former government attorney Jesselyn Radack leaked e-mail messages relating to the John Walker Lindh prosecution to Newsweek. The magazine had reported in June 2002 that the Justice Department attorneys, in their e-mail messages, worried that interrogations of Lindh might not be admissible in court.

Radack, who worked in the department's Professional Responsibility Office at the time, had advised prosecutors that the interrogations were improper. She admits having spoken to Newsweek's Michael Isikoff, and more recently has acknowledged that she gave him materials for the article.

Ellis, the federal judge presiding over Lindh's case, asked the government in June 2002 to investigate the leak of the e-mail messages, which he had sealed. In July 2002, government officials told the judge that several Justice Department employees who had access to the messages had been questioned. Lindh pleaded guilty, presumably ending the judge's involvement in the investigation, but the leaks inquiry continued.

Radack said that when she declined to speak with an official from the Justice Department's inspector general's office, an investigator called the law firm she joined after leaving the government. The investigator's inquiries and Radack's refusal to sign a statement swearing she was not Isikoff's source caused the law firm to suspend her.

The department closed its investigation after concluding that Radack had turned over the materials to Isikoff. It did not subpoena Isikoff during the investigation, but had subpoenaed the law firm for records of all calls to Newsweek phone numbers. The manner in which the government conducted its investigation did nothing to dispel the notion that it may have used the investigation to retaliate against Radack for giving unpopular advice on Lindh's prosecution, and for making it public.

Lawrence Franklin leak prosecution

In May 2005, federal agents speaking on condition of anonymity told The New York Times that four reporters had been questioned in the investigation of leaks of classified information on terrorism, American forces in Iraq, and Middle East strategy to the American Israel Public Affairs Committee and the news media. Former Pentagon analyst Lawrence A. Franklin was charged in May with knowingly disclosing classified information, and in August, two former AIPAC staff members, Steven J. Rosen and Keith Weissman, were charged with conspiracy to distribute national defense information.

The reporters were not identified by the federal agents, who said that at least one worked for a newspaper and the others published on the Internet. The reporters were not subpoenaed and only questioned on a voluntary basis, but could be called before the federal grand jury convened in Alexandria, Va., to investigate the case. The federal agents also said it is possible that more journalists could be questioned in the case.

War correspondents

As media advocates argued (without success) about the need to protect war correspondents in the Lindh case, reporters in war zones are particularly at risk when journalists are seen as agents of government.

War correspondents deal daily with suspicions that they are spies. Michael Ware, Time's reporter in Kabul, Afghanistan, wrote in the magazine's Aug. 12, 2002, issue: "In Afghanistan, every Westerner is a spy until proven otherwise. . . . Sensitive questions can provoke accusations of espionage." Journalists in Iraq face similar hostilities.

Luckily, a development in a major war crimes tribunal in The Hague may soothe some war correspondents' worries. The United Nations International Criminal Tribunal for the former Yugoslavia on Dec. 11, 2002, adopted a qualified reporter's privilege to prevent war correspondents from being forced to provide evidence in the court's prosecutions of war criminals. The decision provides considerable protection for journalists who cover conflict zones and who are subpoenaed to testify before the Tribunal.

The ruling arose from an appeal by former Washington Post correspondent Jonathan Randal, who was ordered on June 7, 2002, to comply with a subpoena to appear as a witness before the court. The subpoena sought Randal's testimony in the prosecution of former Bosnian Serb Deputy Prime Minister Radoslav Brdjanin, who is on trial for genocide and deportation of non-Serbs during the 1992-95 Bosnian war. Randal was subpoenaed because he interviewed Brdjanin for a story published in 1993.

The court, adopting arguments made by Randal and the more than 30 news organizations that submitted an amicus brief in the case, said: "If war correspondents were to be perceived as potential witnesses for the Prosecution, two consequences may follow: First, they may have difficulties in gathering significant information because the interviewed persons, particularly those committing human rights violations, may talk less freely with them and may deny them access to conflict zones. Second, war correspondents may shift from being observers of those committing human rights violations to being their targets, thereby putting their own lives at risk."

Under the privilege established by the tribunal, a subpoena may be issued to a war correspondent only if the evidence sought is of direct and important value in determining a core issue in the case, and the evidence cannot reasonably be obtained elsewhere.

The privilege currently applies only to cases brought before the U.N. Tribunal for the former Yugoslavia, but advocates hope it will serve as precedent in other international courts.

State Department Saudi visa leak

Joel Mowbray, a reporter for the National Review, was detained for 30 minutes on July 12, 2002, after a State Department briefing. Guards and a federal agent demanded that Mowbray answer questions about his reporting on a classified cable concerning the U.S. system of issuing visas to Saudis. The guards who stopped Mowbray wanted to know who gave him the cable. Mowbray denied having the confidential cable and was not searched. He was released without explanation after his editors contacted the State Department.

Sen. Charles E. Grassley (R-Iowa) and Rep. Dave Weldon (R-Fla.) demanded an explanation for the detainment from Powell. In a July 16, 2002, letter, Grassley, a senior member of the Senate Judiciary Committee, and Weldon, chairman of the House Government Reform Subcommittee on Civil Service, asked then-Secretary of State Colin Powell to explain who made the decision to question Mowbray, to name the officials involved and to state whether they were armed.

"We have concerns that government agencies not take inappropriate actions that cast a shadow over our free press," the letter said. "We are troubled that the actions of State Department security officials effectively chilled the work of the media and the whistleblowers who are so vital to exposing problems in our government."

A leak of congressional intelligence

Rep. Porter Goss (R-Fla.) and Sen. Bob Graham (D-Fla.), former chairmen of the House and Senate intelligence committees, asked Ashcroft on June 20, 2002, to investigate the leak of classified information from a closed-door meeting of a joint congressional intelligence panel with the National Security Agency.

NSA officials told the panel that they had intercepted al-Qaida phone conversations on Sept. 10, 2001. The conversations included these statements: "The match is about to begin," and "Tomorrow is zero hour." However, the NSA did not translate the messages until Sept. 12.

In June 2002, CNN and other media reported the intercepted messages and the NSA's failure to translate them before the September 11 tragedy. Those reports prompted an angry phone call from Vice President Dick Cheney to Goss and Graham, who ordered the investigation into who leaked the information.

By early August 2002, the FBI had questioned nearly all 37 members of the Senate and House intelligence committees, 100 congressional staffers, and dozens of officials at the CIA, NSA and Defense Department, according to The Washington Post. The FBI asked congressmen whether they would be willing to submit to lie-detector tests. Most said they would not.

Goss refused to exempt reporters from the investigation, although The Associated Press reported that Goss noted the "time-honored tradition" of reporters protecting sources when he was asked whether reporters would be questioned about the leaks. But, Goss told the AP: "I think when we're dealing with national security it is useful for reporters to cooperate with people who are conducting bona fide investigations." In August 2004, President Bush nominated Goss to replace George Tenet as CIA Director, and he was sworn into office September 24, one day after being confirmed by the Senate.

In August 2004, The New York Times reported that after two years of investigation, the FBI decided that Senator Richard C. Shelby, an Alabama Republican and former chairman of the Senate Intelligence Committee, was almost definitely a source of the leak. According to the Times, the Justice Department referred the matter to the Senate Ethics Committee.

Pentagon efforts to plug leaks

An angry Defense Secretary Donald Rumsfeld spoke out against press leaks over the summer of 2002.

During a July 22, 2002, press briefing, Rumsfeld urged Pentagon employees to reveal the name of an official who leaked an alleged U.S. plan to invade Iraq to The New York Times.

"I think that anyone who has a position where they touch a war plan has an obligation to not leak it to the press or anybody else because it kills people," Rumsfeld said during the press briefing. "It's inexcusable, and they ought to be in jail."

The Air Force Office of Special Investigations looked into who leaked the information to the Times.

In a July 12, 2002, memo attached to an unclassified assessment of war-related leaks prepared by the CIA, Rumsfeld denounced the improper disclosure of classified information and encouraged defense staff members to put an end to them.

"I have spoken publicly and privately, countless times, about the danger of leaking classified information," Rumsfeld wrote. "It is wrong. It is against the law. It costs the lives of Americans. It diminishes our country's chance for success."

The CIA's report, in part, determined that al-Qaida relied heavily on public information and press reports to help it evade U.S. intelligence operatives.

"A growing body of reporting indicates that al-Qaida planners have learned much about our counterterrorist intelligence capabilities from U.S. and foreign media," the report said. "Information obtained from captured detainees has revealed that al-Qa'ida operatives are extremely security conscious and have altered their practices in response to what they have learned from the press about our capabilities."

By late July 2002, parking lot guards were stopping every 30th car leaving the Pentagon to ask if anyone was smuggling out classified documents, and the CIA had suspended two contractors for talking to the press, according to U.S. News & World Report.

Reporters covering the Pentagon were also meeting tighter requirements for unescorted access to the building. Only those reporters who work full-time within the Pentagon or who visit at least twice a week will be issued a press pass and allowed unescorted access to the Pentagon. Other reporters must have an escort.

Federal Shield Bill

Responding to these and other cases where the news media has been subpoenaed, members of Congress have introduced legislation in the House of Representatives and Senate to create a federal reporter's shield law. Currently, 31 states and Washington, D.C. have such statutes, and 18 of the remaining states have created protection through judicial decisions (only Wyoming has not addressed the issue). Although most federal courts recognize some form of privilege, since the U.S. Supreme Court's 1972 split decision in Branzburg v. Hayes that the First Amendment does not provide journalists with a privilege not to testify in grand jury proceedings, those lower federal courts have differed significantly over what protections exist. A federal shield law would provide protection in those jurisdictions that have not recognized a privilege, and bring some uniformity for reporters who might not know at the time they are promising a source confidentiality what court they might later be called to testify before.

Sen. Christopher Dodd (D-Conn.) introduced the first of these bills, the Free Speech Protection Act of 2004, in November 2004, although it was too late in the session to be acted on. Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) introduced the Free Flow of Information Act of 2005 (H.R. 581) in the House on February 2, 2005. Sen. Richard Lugar (R-Ind.) introduced an identical bill in the Senate on February 9 (S. 340). Dodd reintroduced his bill on February 14 (S. 369), and co-sponsored Lugar's bill. Both Pence and Lugar's bills attracted numerous bipartisan cosponsors, 54 in the House and 10 in the Senate.

As originally introduced, the Free Flow of Information Act of 2005 would provide journalists with absolute protection from being compelled to reveal confidential sources, and a qualified privilege from providing testimony, notes or other materials regarding non-confidential sources. The qualified privilege could only be overcome by showing "clear and convincing evidence" that the information could not reasonably be obtained from another source and is essential to proving an issue of substantial importance in a civil case or essential to the investigation, prosecution or defense of a criminal case.

Responding to concerns by the Department of Justice that a federal reporter's shield law would harm national security, the Free Flow of Information Act of 2005 was amended and reintroduced on July 18 (H.R. 3323, S. 1419). As amended, the absolute protection provided for confidential sources could be overcome when "necessary to prevent imminent and actual harm to national security" and "the harm sought to be redressed by requiring disclosure clearly outweighs the public interest in protecting the free flow of information." The Senate held a hearing on the bill July 27. As of early August the reintroduced bill has 48 cosponsors in the House and 9 in the Senate.

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