The Reporters Committee for Freedom of the Press called for a coordinated effort to support a federal shield law in the wake of the decision by the U.S. Court of Appeals in the District of Columbia Circuit today that two prominent journalists do not have a privilege to keep sources of information from a federal grand jury.
“The decision in this case underscores that these are perilous times for journalists and the public’s right to know,” said Reporters Committee Executive Director Lucy Dalglish. “There are more than two dozen cases pending across the United States where journalists are being asked to operate as investigators for the government and litigants. The ability of the media to act as independent sources of information for the public is in jeopardy.”
The shield bills current under consideration in Congress were introduced in early February by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) in the House (H.R. 581), and by Sen. Richard Lugar (R-Ind.) in the Senate (S. 3440). A similar bill was introduced late in the last congress by Sen. Chris Dodd (D-Conn.), but no action was taken.
In today’s action by the D.C. Circuit, the three-judge panel unanimously held that no privilege would protect Time magazine reporter Matthew Cooper and New York Times reporter Judith Miller from being compelled to testify about their sources. The court held that the U.S. Supreme Court “unquestionably” answered the question about maintaining confidentiality before grand juries in 1972 in Branzburg v. Hayes.
This leak investigation began after undercover CIA officer Valerie Plame’s identity was published by columnist Robert Novak in a July 2003 column. Novak cited two unnamed “senior administration officials” as his sources.
Following the Novak column, several other journalists, including Cooper, reported receiving the same information. Miller did not report on the allegations, but was subpoenaed after her name apparently came up during the investigation as another journalist who had also heard the disclosure.
The leak has been characterized as a politically-motivated attack on Plame’s husband, former Ambassador Joseph C. Wilson IV, because Wilson publicly criticized the Bush administration’s assertion that Iraq had been attempting to buy uranium from Niger to make nuclear weapons. The unnamed sources disclosed Plame’s name to point out that Wilson, who had travelled to Africa for the CIA in order to investigate the uranium claims, was only chosen because his wife suggested him for the assignment.
Special prosecutor Patrick Fitzgerald was appointed to investigate the leak last fall, which could lead to criminal charges if the leakers were aware that Plame was an undercover operative. Fitzgerald subpoenaed or otherwise demanded testimony from a number of journalists — including Cooper, Miller, Tim Russert, host of NBC’s “Meet the Press,” and Walter Pincus and Glenn Kessler of The Washington Post — before a grand jury concerning alleged conversations the reporters had with confidential sources. It is not known if Novak has been subpoenaed or if he has testified.
Miller received a subpoena to testify before the grand jury on Aug. 12. Cooper reached an agreement with prosecutors and testified about conversations with Libby on Aug. 24, but was then subpoenaed again Sept. 14. In October, Hogan held Miller and then Cooper in contempt, fined them $1,000 per day and ordered them 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 today.
More information about the federal shield bills and the grand jury investigation into the Plame matter is available from the Reporters Committee’s Web site at: www.rcfp.org/shields_and_subpoenas.html