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Secret agents
From Washington to Providence, reporters face jail for not giving up their sources. But what, exactly, does the government hope to accomplish?

IN WASHINGTON, DC, Time magazine’s Matthew Cooper has refused to identify his confidential sources to Patrick Fitzgerald, the special prosecutor trying to find out who exposed undercover CIA operative Valerie Plame. The upshot: Cooper faces jail, and his employer a hefty fine. The New York Times and the Washington Post have been dragged into this as well.

In Providence, Rhode Island, WJAR-TV (Channel 10) investigative reporter Jim Taricani has also been threatened with jail. Taricani’s offense: not telling government officials the name of the person who gave him a surveillance tape showing a top aide to then–Providence mayor Vincent "Buddy" Cianci taking a bribe from an informant. The station began paying a $1000-a-day fine last week.

At press time, six reporters — two from the New York Times, and one each from the Washington Post, the Los Angeles Times, the Associated Press, and CNN — were waiting to learn whether they would be held in contempt of court for refusing to name sources in their coverage of Wen Ho Lee, a former Los Alamos scientist once suspected of spying for China. Lawyers for Lee claim the information is needed so they can pursue a violation-of-privacy lawsuit against the federal government. [Update: On Wednesday, US District Court judge Thomas Penfield Jackson found five of the reporters in contempt, and ordered that they pay fines of $500 a day until they agree to name their sources. The sixth, the Washington Post's Walter Pincus, escaped sanction because he has not yet been deposed.]

The question of whether reporters have a legal right to protect their confidential sources has been with us for at least a generation. By one estimate, some 18 reporters have spent time behind bars during the past dozen years for refusing to name sources or provide information they had obtained in confidence. Rarely, though, has the issue been as prominent as it is right now. Altogether, according to the Reporters Committee for Freedom of the Press, at least 10 face jail or heavy fines in these three cases. "The number of journalists facing jail in the United States to protect their sources is unprecedented," the organization says.

For those who might have assumed that the issue had long since been settled in favor of the press, these cases demonstrate otherwise. In fact, the matter of whether journalists can protect their confidential sources is one of the great unknowns in media law. For the most part, the answer is no: reporters have the same requirement to testify before a grand jury and divulge what they know about a crime that’s under investigation as any other citizen does. Yet because relying on anonymous sources is sometimes a necessary part of journalism, the courts — and many state legislatures — have carved out certain limited protections for the news media. No reporter, though, enjoys absolute, blanket protection.

The Matthew Cooper case has received the most attention nationally because the Valerie Plame investigation itself has received so much coverage. In 2002, the CIA sent Plame’s husband, former ambassador Joseph Wilson, to Niger in order to investigate claims that Iraq had tried to obtain yellowcake uranium, an ingredient used in the manufacture of nuclear weapons. Wilson reported that there was nothing to the story — and then, in July 2003, wrote an op-ed piece for the New York Times in which he accused the White House of ignoring his findings. Within days, syndicated columnist Robert Novak reported that "[t]wo senior administration officials" had told him Wilson had received the Niger assignment on the recommendation of his wife — "Valerie Plame, ... an agency operative on weapons of mass destruction."

Wilson denied — and continues to deny — that his wife was responsible for his Nigerien adventure. Recently, though, the bipartisan report of the Senate Intelligence Committee strongly suggested that Plame did indeed suggest her husband for the assignment. The report also found that Wilson, contrary to his assertions in the Times, came across evidence that an agent of Saddam Hussein may have sought to buy yellowcake from the Nigerien government. But though the report has cast aspersions on Wilson’s credibility, it also suggests a motive for whoever leaked Plame’s name, CIA status, and relationship to Wilson. What better way to belittle him than to cast him as an over-the-hill diplomat who depends on his wife for occasional work?

What has brought Matt Cooper to the brink of jail is a federal law — the Intelligence Identities Protection Act of 1982 — that makes it a crime for a government official to reveal the identity of a covert government employee such as Plame. Reportedly, the officials who whispered Plame’s name in Novak’s ear ratted her out to about a half-dozen journalists in total, although only Novak — an ultraconservative inside player known in political and media circles as "the Prince of Darkness" — was willing to rush it into print. (In a piece for Time.com that appeared only after Novak’s column had already been published, Cooper and two fellow reporters wrote that "some government officials" were shopping her name to the media.) Also fighting subpoenas in the Plame matter are Washington Post reporter Walter Pincus and New York Times reporter Judith Miller. (Actually, Miller has received two subpoenas in the Plame case, and the Times as a separate party has received one as well.) Apparently Fitzgerald’s office has some reason to believe that they, too, know who was behind the Plame leak. (In a twist that is either ironic or simply evidence of how hard the guy works, Pincus is also one of those named in the Wen Ho Lee case.)

On July 20, US District Court judge Thomas Hogan ruled against a motion filed by Cooper and NBC News Washington-bureau chief Tim Russert to quash subpoenas seeking their testimony. Hogan’s ruling was made public last week, at which time it was also reported that Russert had already testified, but without naming any confidential sources. (Last spring, the Washington Post’s Glenn Kessler testified under similar circumstances.) Cooper, though, faces jail unless he agrees to reveal the identity of "some government officials" before Fitzgerald’s grand jury. His magazine faces a fine of $1000 a day. Both sanctions have been postponed pending the outcome of Cooper’s and Time’s appeal. Presumably Miller, Pincus, and their newspapers, who were not dragged into the case until more recently, could receive the same punishment.

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Issue Date: August 20 - 26, 2004
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