Protecting Anonymous Sources

TERENCE SMITH:

In ordering New York Times reporter Judith Miller jailed today, U.S. District Court Judge Thomas Hogan said he thought there was a realistic possibility that confinement could cause her to change her mind and testify before a grand jury investigating the possibly illegal exposure of CIA officer Valerie Plame.

MATTHEW COOPER:

This is a sad day for not only journalists, but for our country.

TERENCE SMITH:

Time Magazine's Matt Cooper said he had been prepared to go to jail today, but that his source had released him at the last moment from a pledge of confidentiality.

MATTHEW COOPER:

I have kept my word to that source today for two years. This morning in what only can be described as a stunning set of developments, that source agreed to give me specific, personal unambiguous waiver to speak before the grand jury.

TERENCE SMITH:

But Miller, surrounded by cameras as she arrived at the federal courthouse in Washington, held fast in her refusal, saying: "If journalists cannot be trusted to keep confidences, then journalists cannot function and there cannot be a free press."

Her plea did not impress Judge Hogan and he ordered Miller to remain in jail for civil contempt for up to four months unless she agrees to testify. Floyd Abrams is one of Miller's attorneys.

FLOYD ABRAMS:

Judy Miller today joins a long train of journalists throughout our history who have insisted on protecting the confidentiality of their sources.

TERENCE SMITH:

Special counsel Patrick Fitzgerald said in court that Miller was protecting a promise she had no right to make. He has not spoken to reporters since his investigation began 18 months ago and did not appear before cameras after today's proceedings.

Last week, the Supreme Court refused to hear appeals from both reporters, thereby allowing to stand a D.C. Court of appeals judgment that the reporters did not enjoy a so-called reporter's privilege in refusing to testify about the leaking of Plame's name to columnist Robert Novak in July 2003. Plame's husband, former Ambassador Joseph Wilson, was asked in 2002 by the Bush administration to investigate reports that Saddam Hussein sought uranium in West Africa.

In July 2003, Wilson went public to dispute White House claims about the subject of his mission and what he found or didn't find. Shortly thereafter, Plame's name surfaced in Novak's column, alleging that she interceded to send Wilson on the weapons mission to Niger.

In response, Wilson charged that, in an effort to intimidate him, White House officials knowingly exposed his wife's identity, which could be a federal offense. Novak is in no apparent legal jeopardy and has continually refused to comment on whether he has been subpoenaed to testify or has answered questions from the prosecutor.

Last week, Time Magazine, which was also facing a contempt citation, handed over its reporter's electronic notes and communications to the special counsel in an attempt to head off his imprisonment. On Friday, after the documents turned over by Time identified Karl Rove, the White House deputy chief of staff, as a Cooper source, Rove's lawyer confirmed that the official spoke with Cooper, but denied that Rove broke the law in his discussions with journalists.

TERENCE SMITH:

Joining me now for more on this case are, Bill Keller, executive editor of The New York Times, and Steve Chapman, columnist and editorial writer for the Chicago Tribune. Welcome to you both.

Bill Keller, give us your reaction to the court proceedings today. You were there in the courtroom.

BILL KELLER:

Well, I'll go along with Matt Cooper's characterization of the day as a sad one for journalists. It was, of course, particularly sad for friends and colleagues of Judith Miller to see her escorted off to jail. It just feels like a day when nobody really won; a good, honorable principled reporter is in jail.

The special prosecutor is no closer to resolving his case, whatever it is, because it's largely a mystery exactly what crime, if any, he's pursuing. And I think the net effect of this has been to chip away a little bit more at the ability of the press to aggressively pursue what goes on in the government and other powerful institutions.

TERENCE SMITH:

Now, the prosecutor made the point in court that not only does he know the identity of Judy Miller's source, that he — that source has signed a waiver of confidentiality, in which case, what is Judy Miller defending?

BILL KELLER:

I don't know whether the special prosecutor knows the identity of her source. I do know this: that Judy Miller made an absolute pledge to her source that she would not reveal his name or the substance of their conversation, and to this point, she has received no waiver or release that she regards as freely given anyway from that source.

TERENCE SMITH:

Although, the source apparently has signed such a waiver, as did other officials in the White House.

BILL KELLER:

Well, Judy has said — and I think she's absolutely on solid ground — that a waiver that's signed with your employer looking over your shoulder is hardly something given, you know free and clearly.

TERENCE SMITH:

Steve Chapman, give us your reaction to this, and particularly that description that Bill just used of Judy giving what he described as an absolute pledge of confidentiality.

STEVE CHAPMAN:

She may have given it, but I don't think she had any right to give it. I don't think she had any obligation to, and I don't think it was wise to do so. I think reporters should be able to promise their sources confidentiality in circumstances like this, but I don't think — I think that that obligation ends where the law begins.

I don't think reporters have a right or a duty to violate the law or to violate valid court orders, which is what's happened here, and I think it's a terrible shame.

TERENCE SMITH:

You've written, Steve Chapman, that this is a case that the press doesn't deserve to win. What do you mean by that?

STEVE CHAPMAN:

Look, we have a law against disclosing the names of undercover agents. Everybody agrees that's a good law. In this case it was violated. That's a serious federal felony, and I think any other citizen who was called to testify, having been witness to this crime, would consider it a normal obligation of citizenship to do so, and what we have here is reporters — a reporter now — who says she doesn't have that obligation.

TERENCE SMITH:

Bill Keller what about that obligation, that of a citizen as well as a journalist?

BILL KELLER:

I think we sort of have two questions operating here on parallel tracks. One of them is the question of whether reporters are entitled to or have some particular privilege. Forty-nine states in the union have said that they do. There's considerable disagreement about whether that is an absolute protection, which it happens to be under the law in the state of New York; or a much more qualified protection, as it is in many other states. But the basic notion that the ability of the press to do its job is a good thing is pretty well established in common law.

TERENCE SMITH:

In state law, not federal.

BILL KELLER:

In state law. Unfortunately, there is no such protection at the federal level. On the other hand, you have a case here where we've gone up to the Supreme Court, and clearly our legal remedies have been exhausted.

At this point, the law and principle have come into a collision. Judy has — you know, the law presented Judy with a choice. She could betray her source and go free or she could go to jail. I think the choice she made is an honorable, principled, brave choice, and one that has been honored down the centuries in America.

STEVE CHAPMAN:

What I'd like to point out here is that under the sort of — under the sort of shield laws that apply in most states, if there were such a law at the federal level, it would not excuse Miller from testifying because what's been established by the prosecutor in court in this case is that the information he's seeking is absolutely critic to the investigation and that there's no other way to get it. And under those circumstances, in almost every state, she would be compelled to testify.

TERENCE SMITH:

Now, Bill Keller, —

BILL KELLER:

I'm not arguing with that. That was exactly my point.

TERENCE SMITH:

Do you differ with the decision of Time Magazine to turn over notes, turn over e-mails, identify Matt Cooper's source, and what's your reaction to his decision today to go ahead and testify?

BILL KELLER:

I do differ with Time. I think Time's decision was honorably made. I really think they agonized over the kind of issues that Steve is discussing and came to a conclusion that was heartfelt. I don't think this was a sort of cynical decision made under economic pressure. But the effect of it was pernicious.

In the first case, it sends a signal to potential whistle blowers — I know this is not a whistle blower case — but to potential whistle blowers or people who see wrongdoing behind the secrecy of government, it sends a message to them that big media companies won't necessarily stand by their reporters if those reporters have promised you anonymity.

And the second thing that Time's decision did, the nature of their statement, with all of its talk about reporters not being above the law, it suggests that this is something that we do in a frivolous way or out of arrogance, and that's — nobody can read the history of this case and believe that that's true. This has been agony from day one.

TERENCE SMITH:

Steve Chapman, you have argued in your writing that the reporter's privilege really exists in what you call the fertile imagination of journalists. How far are you going with that? Are you saying that journalists should not provide confidentiality to sources at all?

STEVE CHAPMAN:

Well, look, these reporters went to court, federal court. They argued at the district level and at the appeals court level that there exists a constitutional protection for journalist sources, that there exists a common law privilege, and the courts unanimously said they do not, and yet, we've persisted in this case in saying that, despite what the courts tell you, that's what the law allows. It doesn't allow that. It shouldn't allow that, and I think we're making a huge mistake to pretend otherwise.

BILL KELLER:

And that sort of ducks the question of whether there should be a privilege.

STEVE CHAPMAN:

I think there should be a federal shield law that would limit subpoenas to journalists to cases where the information being sought is critical to the investigation and there's no other way to get it, and if we had a law like that, it would protect 98 percent of the confidential sources that journalists use, and it would not protect Judith Miller, I'm afraid.

TERENCE SMITH:

Do you agree it would not protect Judith Miller in this case?

BILL KELLER:

I think that's correct. That's why I said we're talking about two separate things. One is the whole realm of what the law ought to provide in the way of protections or does provide, and the other is what happens when you run out of legal protection but you still feel like you have a moral obligation to stick by your promise?

TERENCE SMITH:

You know, when you came out of court today, publicly you described this as a chilling conclusion to a confounding case and in fact the judge in the courtroom described it as a "perfect storm" in which Judith Miller was — and is — an actor in a drama, not a suspect in a case. Is that what you meant by a "confounding?"

BILL KELLER:

Yes, that and in part by virtue of the fact that this has happened before a grand jury. So much of it we just don't know. I mean, there is speculation, for example that what started out as a case to identify somebody who leaked the name of a covert agent may have morphed into something else. I don't know if that's true, but there's talk that the special prosecutor may now be looking into obstruction of justice or perjury or something else. We don't know.

We've had court rulings in which page after page of the opinions were redacted, blacked out, so that we can't even see the substance of the judge's argument. So, this has been a kind of series of black holes, and I — I honestly don't know what is at the heart of this case any more.

TERENCE SMITH:

Steve Chapman, if indeed it is devolving into a case of perjury or alleged perjury, is that worth what the journalists are going through?

STEVE CHAPMAN:

I don't think Patrick Fitzgerald has gone to all this trouble to put Judy Miller in jail. I think what he's trying to do is find the person who broke this law and put him in jail, and I think that's exactly what he ought to be doing, whatever he has to do to get it.

TERENCE SMITH:

And finally, Bill Keller, is The New York Times seeking or expecting the sort of personal, unambiguous waiver of confidentiality from Judith Miller's source that Matt Cooper says he got this morning?

BILL KELLER:

Well, I can't speak for Judy. I can only speak for myself, and I guess for the paper. I certainly would be delighted if Judy's source could provide her with what she would regard as a convincing free absolution, but, as I said before, at this point, she hasn't had a waiver that she believes was independently given.

TERENCE SMITH:

Okay, Bill Keller, Steve Chapman, thank you both very much.

BILL KELLER:

You're welcome.

STEVE CHAPMAN:

Thank you.