TERENCE SMITH: New York Times reporter Judith Miller and Times Magazine's Matthew Cooper went to the U.S. Court of Appeals in Washington today to challenge their contempt of court convictions. They've been charged with refusing to discuss confidential conversations that may reveal who leaked the name of an undercover CIA agent to reporters last year.
A special prosecutor is trying to pinpoint when and from whom journalists learned of the agent's secret identity. Syndicated columnist Robert Novak first revealed the identity of the agent, Valerie Plame, in a column 17 months ago. Novak and the special prosecutor have declined to say whether the columnist has been questioned about his contacts.
Several Bush administration officials have been interviewed in connection with the 14-month investigation, including the president, Vice President Cheney and Secretary of State Powell. The prosecutor is trying to establish who in the administration may have provided the leak.
Inside the courtroom this afternoon, Floyd Abrams, the attorney for the reporters, argued before the three-judge panel that common law gives reporters a privilege to protect the identity of their confidential sources. James Fleissner, the deputy special prosecutor, countered that any such privilege would be trumped by the government's obligation to prosecute a crime, in this case, revealing the identity of a covert agent for the CIA. After the hearing, the reporters made their own case.
JUDITH MILLER: The central issue for me as a reporter is still the public's right to know. Can people feel comfortable to come to Matt and to me and to other journalists and know that we will protect their sources?
MATTHEW COOPER: Look, for me the central question is in the United States of America no reporter should have to go to jail for doing his or her job.
TERENCE SMITH: Neither Cooper nor Miller had anything to do with the leak to Novak, but now face as much as 18 months in jail for refusing a court order to testify about their contacts with confidential sources related to the Plame story. Miller did some reporting, but in fact never wrote about the Plame case; Cooper did.
In addition to this case, there are two others in which reporters face jail time for protecting sources. Jim Taricani, an investigative television reporter in Providence, Rhode Island is scheduled to be sentenced tomorrow. He had refused to say who gave him a videotape of a city official accepting an envelope of cash. Last week, a defense lawyer in the case revealed he had provided the tape.
And in a federal civil suit brought by former nuclear weapons scientist Wen Ho Lee, five other reporters are appealing contempt citations over their refusal to testify about confidential sources. 31 states plus the District of Columbia have shield laws recognizing a "reporter's privilege" to protect confidential sources.
TERENCE SMITH: Joining me now to discuss this case and the issues it raises is: Victoria Toensing, a former deputy assistant attorney general in the Reagan administration; and Floyd Abrams, a First Amendment attorney who is representing reporters Cooper and Miller in the investigation. Welcome to you both.
Floyd Abrams, summarize, if you will, in layman's term, the argument why, from your point of view, these two reporters should not go to jail for refusing to disclose their confidential source.
FLOYD ABRAMS: Well, as your piece showed, these journalists haven't done anything wrong. These are journalists, one of whom wrote the first story exposing the fact that there had been leaks by the administration attacking Mr. Wilson by referring to his wife's position in the CIA. That was Matt Cooper and Judy Miller didn't write anything at all.
It's our view that under the First Amendment as determined by a lot of cases around the country that there is legal protection for journalists when they have confidential sources in most circumstances at least, and that there should as a general matter be a balancing test followed by the courts in which they look at things like how important is this information, how hard have they tried to get it, did they really need it from the journalist.
The Department of Justice itself uses a term where they say, we're not supposed to subpoena people except in exigent, urgent circumstances. We think we don't have urgent circumstances here. And we don't think the subpoenas and the inability of the journalists to turn in their sources, personal, moral inability, should lead for them to go to jail.
TERENCE SMITH: Victoria Toensing, you were in the courtroom today. And I know you share the government's view of this. Summarize it for us.
VICTORIA TOENSING: Well, in certain circumstances, revealing the name of an undercover operative is a crime. So in this situation, though, the press kind of brought it on themselves because when this leak was revealed by Time Magazine, there was this hue and outcry because the people involved had become the darling of the press.
There was this great call for that this is maybe treasonous, bordering on treason, said one newspaper. You better investigate and, not only you better investigate, Justice Department, but you better appoint a special council because heavens knows this Justice Department is not capable of doing a good job or a fair job of it.
TERENCE SMITH: So they got what they wished for.
VICTORIA TOENSING: The press got what they wished for. Now, the prosecutor, who is a special counsel, is not -- doesn't have to follow the guidelines that Floyd just talked about, but, you know, he's had all this press coverage. He's going to say, okay, press, you wanted an investigation, I'll show you investigation. I'm going to go find the culprit.
TERENCE SMITH: Okay, and the argument is that he's going after these two reporters, who as Floyd Abrams just said, did not do anything wrong in talking to confidential sources, but he's going after these two reporters to find out who they talked to. How would that lead to uncovering who leaked this information to columnist Bob Novak?
FLOYD ABRAMS: You see one of the things we're really not sure of is whether the scope of this investigation is primarily Novak-related, in which case it probably wouldn't lead to it or it might but it's pretty attenuated, or whether the scope is to see if anyone in the government told anyone in the press something he wasn't supposed to tell, the name of the CIA agent.
TERENCE SMITH: That would be the crime or could be the crime.
FLOYD ABRAMS: Something like that. If you do it and you know the person is a covert agent and you know that the covert agent is being treated as a covert agent, the government is taking steps to protect the identity of the person -- that can be a crime for somebody in the executive branch, not for the reporter but for the leaker.
TERENCE SMITH: Yet it is fair, Victoria Toensing, that then the reporters are the ones facing jail time, not the source, not the person who may have committed a crime?
VICTORIA TOENSING: Well, 30 years ago the Supreme Court said yes, yes, that's fair, we're not going to create privilege for reporter's sources; we're just not going to do it. Because if somebody has committed a crime, the court said we're not going to give that constitutional protection.
And then they discussed a variety of reasons and concerns which were brought up today at the court. One of them we could talk about, who is a source? While we know everyone that Floyd Abrams represents is a high fallutin' --
TERENCE SMITH: Who is a reporter, you mean?
VICTORIA TOENSING: I'm sorry. Who is a journalist, who qualifies to protect the source? The New York Times, sure, these are all Floyd's kinds of clients, but what about a freelance journalist? What about a blogger?
TERENCE SMITH: Well, what about a blogger, Floyd Abrams?
FLOYD ABRAMS: I was asked that today, and I said as I say here, I think a blogger ought to be protected also. It seems to me that the purpose of this privilege is to protect the people who play a function in American life.
It's not to protect reporters as such. It's to protect people who gather information and disseminate it on a widespread basis to the public. So I think eventually if there is a privilege, and that's one of the things the court's going to deal with, but if there is a privilege here, whether it's rooted in the First Amendment or what's called federal common law, I think it should apply to bloggers as well.
TERENCE SMITH: Now, of course, there are other privileges, Victoria Toensing. There are attorney-client, doctor-patient, spouses, et cetera, privileges that you can't be required to disclose certain things.
VICTORIA TOENSING: The government would say that Floyd is being greedy here. He's asking for a privilege that's greater than the attorney-client privilege because all attorneys have to be licensed. We know that. We certainly wouldn't want to license a journalist. That would be a problem, a First Amendment problem.
The attorney has to be acting in the capacity of I am absolutely your attorney for that privilege to attach. If the client waives the privilege, then the attorney doesn't have it anymore. The attorney is supposed to go... what the press is asking for... it doesn't matter if the source waives it. It's up to the journalist to really decide.
And there is an exception for the attorney-client privilege, and that's the crime fraud exception. Even unwittingly if the attorney furthers the crime in any way, the court can bring him in, command the attorney to testify and guess what the penalty is if the attorney doesn't cough it up? Jail.
FLOYD ABRAMS: You know that there is an anomaly here in way, and I mentioned it in court today. I sit representing reporters who have confided in me because I'm their attorney. I know at least some of their sources.
Not a judge in America, not one, would think of saying, you know, this is so important, this investigation, it's so important to find out who leaked information, come on, Floyd, tell us. Why? Because they understand, they accept the proposition that it's so important for attorneys to be able to speak to their clients and vice versa.
And what we're saying is that there is a very powerful case to be made for protecting journalists who are in a similar situation except the ultimate good, journalism at its best, is that journalists serve the public by presenting them with information which form a sort of essential part of self-government…
VICTORIA TOENSING: I would agree with first part of what Floyd said, that the attorney-client privilege is very special and no judge would do this. I point out that it's very rare that this situation arises, and when it does arise, we really come to the third issue that the court was concerned about today, and that is it arises in a criminal investigation where someone has committed a crime by providing the information to the reporter and what one of the panelists, I believe Judge Tatel, said today was, you know what, any criminal leak investigation is just going to be thwarted. It's your own version... don't ask won't tell -- it's your new policy.
TERENCE SMITH: Yet after the arguments outside on the sidewalk, you made the point there is now that there's sort of an explosion of leak investigations and of cases against reporters.
FLOYD ABRAMS: I may have made my best argument on the sidewalk today. But there are a lot of these going on, and it's very interesting. I mean, none of us really know why so much is going on.
One reason I think is there are a lot of leak investigations going on. Leak investigations by their nature focus in on the leaker and the leakee -- the journalist.
The point is that there's something wrong with a system, whether or not we win this case or not, there is something wrong with a system which works so hard to discourage leaks that it winds up putting journalists in jail just because they've made promises of confidentiality and tried to keep them.
TERENCE SMITH: If it did wind up that way, would that not run the risk of having a chilling effect on the kind of reporting that the public might like to see?
VICTORIA TOENSING: Well, for 225 years reporters have known that they don't have this privilege that Floyd is trying to carve out here on the federal level, so it's not really an issue.
What are the... there are five reporters that you had mentioned in the piece up front. Wen Ho Lee, what is... somebody leaked information about him that's not true. Doesn't he have a right to sue that person?
TERENCE SMITH: Indeed. All right. We'll have to see. We'll see what the ruling is. Victoria Toensing, Floyd Abrams, thank you both very much.