The three judges in the U.S. Court of Appeals for the D.C. Circuit ruled that Time magazine's Matthew Cooper and The New York Times' Judith Miller must comply with a subpoena ordering them to testify before a federal grand jury about their confidential sources.
The court's decision upheld the October ruling by Judge Thomas Hogan that Miller and Cooper were in contempt of court for defying the grand jury subpoena, rejecting the journalists' argument that the First Amendment shielded them from having to reveal their confidential sources.
"We agree with the District Court that there is no First Amendment privilege protecting the information sought," Judge David Sentelle said in the court's unanimous ruling.
Both reporters each face up to 18 months in prison if they continue to refuse to cooperate with federal prosecutors.
Special prosecutor Patrick Fitzgerald, the Chicago U.S. attorney, is investigating whether a crime was committed when someone leaked the identity of CIA covert officer Valerie Plame. Conservative columnist Robert Novak first published her name in a July 14, 2003 column, citing two senior Bush administration officials as his sources.
Novak's column appeared days after Plame's husband, former Ambassador Joseph Wilson, wrote a New York Times opinion piece challenging President Bush's claim that Iraq had sought uranium in Niger. Wilson has said he believes his wife's name was leaked in retaliation for his critical comments.
The disclosure of an undercover intelligence officer's identity can be a federal crime if prosecutors can prove the leak was intentional and the person who released that information knew of the officer's secret status. No charges have been brought so far in connection with the investigation, which began sometime in 2003.
Cooper, a White House correspondent for Time magazine, has reported on the Plame leak but never revealed her identity. In August, Cooper agreed with prosecutors to give limited testimony about a conversation he had with Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, after Libby released Cooper from his promise of confidentiality. Fitzgerald later issued a second, broader subpoena to Cooper seeking the names of other sources.
Miller reportedly spoke with sources about the Plame story and gathered information for an article but never published one.
One of the appeals court judges, David Tatel, said he might have quashed the subpoena "were the leak at issue in this case less harmful to national security or more vital to public debate."
Time magazine's editor in chief Norman Pearlstine expressed deep disappointment by the court's decision, saying in a statement, "We fully intend to pursue all of our legal avenues.
"We continue to believe that the right to protect confidential sources is fundamental to journalism. Without that right, important information that should be available to the public would never see the light of day. In the United States no journalist should have to go to jail simply for doing his or her job," Pearlstine said.
Floyd Abrams, a First Amendment attorney representing both reporters, said he would ask the full appeals court to reverse Tuesday's ruling. "Today's decision strikes a heavy blow against the public's right to be informed about its government," Abrams said in a statement.
Prosecutors have interviewed President Bush, Cheney, then-Secretary of State Colin Powell and other current or former administration officials in the investigation. Journalists from NBC and The Washington Post also have been subpoenaed. Novak has never said whether he has testified in the case.