By James Vicini
WASHINGTON (Reuters) – Two journalists must disclose conversations with their confidential sources to a grand jury investigating a leak that exposed the identity of a covert CIA operative, a U.S. appeals court ruled on Tuesday.
It upheld a ruling that found New York Times investigative reporter Judith Miller and Matthew Cooper, the White House correspondent for Time Magazine, in contempt for refusing to testify. They each could be jailed for up to 18 months.
The three-judge panel ruled that the two journalists must comply with a subpoena from a grand jury investigating whether the Bush administration illegally leaked the CIA officer’s name to the news media.
«There is no First Amendment privilege protecting the evidence sought,» Judge David Sentelle wrote in the main opinion for the court.
He rejected the argument by the journalists that the identity of their confidential sources was protected by a reporter’s privilege under the First Amendment, which guarantees freedom of speech and freedom of the press.
The judge’s ruling also revealed that investigators were seeking information about a certain government official, who was not identified.
The subpoenas seek documents and testimony about conversations between Miller and «a specified government official,» and between Cooper and «official source(s),» the ruling said.
In a statement, special counsel Patrick Fitzgerald said, «We look forward to resuming our progress in this investigation and bringing it to a prompt conclusion.»
Arthur Sulzberger Jr., publisher of The New York Times, vowed to challenge the decision and said, «If Judy is sent to jail for not revealing her confidential sources for an article that was never published, it would create a dangerous precedent that would erode the freedom of the press.»
Norman Pearlstine, editor-in-chief of Time Inc., said, «We fully intend to pursue all of our legal avenues with respect to today’s decision. … In the United States no journalist should have to go to jail simply for doing his or her job.»
The grand jury has heard testimony from officials and journalists to try to establish who leaked the name of a CIA operative, Valerie Plame, in 2003 to syndicated columnist Robert Novak, who revealed her identity in a column.
Plame’s husband, Joseph Wilson, a diplomat in the Clinton administration, accused the White House of being responsible for the leak. He said officials did so because Wilson had publicly disputed a claim by President Bush about Iraq’s attempts to buy nuclear weapons parts.
Disclosing the identity of a clandestine intelligence officer is a crime. No charges have been brought so far in connection with the investigation, which began in January last year.
Although Miller and Cooper talked to sources about the Plame story, neither had anything to do with leaking her identity.
All three appeals court judges upheld the subpoena requiring the journalists to testify.
Judge David Tatel wrote separately that 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.»
Tatel said Fitzgerald had established the need for testimony by Miller and Cooper, and that reporters do not have an absolute right to protect the identities of their sources.
The appeals court cited a 1972 U.S. Supreme Court ruling that a reporter can be called to testify before a grand jury about confidential information.
The reporters could appeal to the full appeals court or to the Supreme Court. (Additional reporting by Deborah Charles)
By James Vicini