From the Summer 2005 issue of The News Media & The Law, page 4.
It all began with 16 words: "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa," President George W. Bush told the nation in his Jan. 28, 2003, State of the Union address.
Unbeknownst to New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper, a story began unfolding that would lead to a two-year battle to protect their confidential sources from a federal grand jury investigating the leak of an undercover CIA operative's identity.
Four months after the U.S. invaded Iraq, The New York Times published a column by former Ambassador Joseph Wilson questioning Bush's assertion. In the July 6, 2003, column, Wilson wrote that the CIA sent him to Africa in 2002 to investigate questions from Vice President Dick Cheney's office about whether Niger had agreed to sell a lightly processed uranium called yellowcake to Iraq. Wilson reported that such a transaction was "highly doubtful," and that he was confident that his report "was circulated to appropriate administration officials."
"If my information was deemed inaccurate, I understand (though I would be very interested to know why)," he wrote. "If, however, the information was ignored because it did not fit certain preconceptions about Iraq, then a legitimate argument can be made that we went to war under false pretenses."
On July 14, 2003, syndicated columnist Robert Novak discredited Wilson's assertions, calling it "doubtful" that then-CIA Director George Tenet ever saw Wilson's report. "Certainly, President Bush did not,'' Novak wrote.
"Wilson never worked for the CIA, but his wife, Valerie Plame, is an agency operative on weapons of mass destruction. Two senior administration officials told me his wife suggested sending Wilson to Niger to investigate," Novak wrote.
The disclosure of an undercover CIA operative's identity by government officials can be a violation of federal law, including the Intelligence Identities Protection Act.
Three days later Time.com published a short item by Cooper titled "A War on Wilson?" Cooper reported that "some government officials have noted to TIME in interviews, (as well as to syndicated columnist Robert Novak) that Wilson's wife, Valerie Plame, is a CIA official" and that the officials "suggested that she was involved in her husband's being dispatched to Niger." Cooper wrote that Wilson denied that his wife had anything to do with the Niger mission and that Wilson called the assertion "a smear job."
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. Then-Attorney General John Ashcroft removed himself from the investigation because of possible conflicts of interest and Chicago U.S. Attorney Patrick J. Fitzgerald was appointed as an independent special prosecutor.
Fitzgerald focused his investigation in early 2004 on government employees, including a limited interview with Bush and Cheney. But in May 2004, armed with blanket confidentiality waiver forms signed by potential administration sources of the leak, Fitzgerald turned his attention to the news media.
Cooper, Glenn Kessler and Walter Pincus of The Washington Post, and Tim Russert of NBC's "Meet the Press" received subpoenas to appear before a grand jury and testify about their knowledge of the case. Miller, who never wrote about the case but was apparently identified from White House phone records as having spoken to someone in the administration, also was subpoenaed.
It is not known whether or to what extent Novak testified before the grand jury. He consistently has refused to discuss the issue, although in a June interview on CNN's "Inside Politics, " Novak said he would "write a column when the case is closed" and "tell everything I know."
At the request of Cheney Chief of Staff I. Lewis "Scooter" Libby, Kessler testified by deposition on June 22, 2004, confirming that neither Plame nor Wilson were mentioned in conversations he had with Libby. On Sept. 16, 2004, Pincus gave a deposition with an unnamed source's permission, but refused to name the source who had already identified him or herself.
Russert and Cooper initially resisted the subpoenas, but on July 20, 2004,Chief U.S. District Judge Thomas Hogan of Washington, D.C., denied their motions to quash and ordered them to testify. Russert reportedly agreed to limited testimony about information he told Libby. Cooper was held in contempt for continuing to refuse to testify, but then reached an agreement with prosecutors to offer limited testimony about Libby after receiving a personal waiver of their confidentiality agreement.
Cooper's reward for reaching a compromise and cooperating with the probe was new, broader subpoenas issued to both Cooper and Time.
By October 2004 only Miller, Cooper and Time remained under subpoena, and all pledged to resist revealing their sources. Hogan held Miller in civil contempt of court on Oct. 7, followed by Cooper and Time on Oct.13. Hogan fined them each $1,000 a day and ordered Miller and Cooper to jail until they agreed to testify, but stayed the fines and jail sentences pending appeal.
"The central issue for me as a reporter is still the public's right to know," Miller said outside the courthouse after oral arguments in December in their appeal to the U.S. Court of Appeals in Washington, D.C. Cooper agreed. "We are prepared to do what we need to do to protect our sources," he said.
The Court of Appeals upheld the subpoenas on Feb. 15. Although the three-judge panel split on the existence of a reporter's privilege under the First Amendment or common law, all three agreed that if there was a privilege it was a qualified one that Fitzgerald had overcome based on secret grand jury evidence shown to the court, but not to the journalists or their attorneys.
"We have pressed appellants for some distinction between the facts before the Supreme Court in Branzburg and those before us today. They have offered none, nor have we independently found any," Judge David B. Sentelle wrote for the court. "Unquestionably, the Supreme Court decided in Branzburg that there is no First Amendment privilege protecting journalists from appearing before a grand jury or from testifying before a grand jury or otherwise providing evidence to a grand jury regardless of any confidence promised by the reporter to any source. The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter."
The full Court of Appeals declined to review the case, and on June 27 the U.S. Supreme Court also denied review, sending the case back to Judge Hogan.
Miller and Cooper reiterated their resolve to go to jail rather than break their promises of confidentiality, but on June 30, Time broke ranks and agreed to turn over Cooper's notes and e-mail to the grand jury.
"The same Constitution that protects the freedom of the press requires obedience to final decisions of the courts and respect for their rulings and judgments," Time Editor-in-Chief Norman Pearlstine said in a statement. "That Time Inc. strongly disagrees with the courts provides no immunity. The innumerable Supreme Court decisions in which even Presidents have followed orders with which they strongly disagreed evidences that our nation lives by the rule of law and that none of us is above it."
Pearlstine denied being pressured to comply by his corporate superiors at Time Inc. "This was not a decision of anyone but me," he told The New York Times. But in court documents filed on June 28, Fitzgerald said he would seek to have Time Inc. corporate officers held in contempt of court if Time did not turn over the subpoenaed records.
Turning over Cooper's notes and e-mail, Pearlstine said, "obviates the need for Matt Cooper to testify and certainly removes any justification for incarceration." Fitzgerald disagreed. "We still need his testimony," he said at Miller and Cooper's July 6 sentencing hearing. "Perhaps even more so than in the past."
Standing before Judge Hogan at the sentencing hearing, Cooper announced that he was prepared to go to jail to protect his sources. "I gave my word and I have kept my word," he told the court. But rather dramatically, he changed gears. Cooper announced that earlier that morning, after hugging his 6-year-old son goodbye and telling him he might not see him for some time, he received a "personal, unambiguous, uncoerced waiver" from his source and would testify.
The waiver was actually secured by Cooper's attorney, Richard Sauber. On the morning of the sentencing, Sauber saw presidential adviser Karl Rove's lawyer Robert Luskin quoted in The Wall Street Journal as saying "if Matt Cooper is going to jail to protect a source, it's not Karl he's protecting." With Cooper's permission, Sauber contacted Luskin and Rove approved a specific waiver. Luskin later told The Washington Post that Rove was merely affirming the blanket waiver he had already given.
Miller had no such waiver to rely upon. "I do not make confidentiality promises lightly, but when I do I must honor them," she told Hogan. "I cannot break my word just to stay out of jail." (See her complete statement, page 8.)
Hogan was unmoved. "That's the child saying, 'You can spank me but I'm still gonna take that chocolate cookie and eat it,'" he responded, before sending Miller to the Alexandria Detention Center near Washington, D.C., until she agrees to testify or until the grand jury expires in October. Miller could also receive another, longer sentence if Fitzgerald decides to bring criminal contempt charges against her, which he has indicated that he might.
Cooper testified before the grand jury on July 13, and on July 17, exactly two years after his Time.com piece was published, he confirmed for the first time in a Time magazine column that Rove, along with Libby, were his sources.
When asked by Russert on "Meet the Press" that same day if he had any other sources for the 2003 article, Cooper replied "I don't want to get into it, but it's possible," adding that he told the grand jury everything he knows and that he had a waiver for everything he told the grand jury. — GP