07/07/2005

Jailing of Times reporter for refusing to identify sources escalates First Amendment debate

By MICHAEL J. SNIFFEN
Associated Press Writer

WASHINGTON (AP) -- Will the jailing of New York Times reporter Judy Miller scare people off from risking careers to tell reporters about government misdeeds? Or will Miller's willingness to sit behind bars rather than name a confidential source embolden such whistleblowers?

As Miller was led from court to a jail cell Wednesday, news executives and observers debated those questions. Saddened by Miller's fate, most feared sources will be less likely to talk; some hoped they will be reassured.

On the government side, U.S. District Judge Thomas Hogan, who sent Miller to jail for almost four months unless she recants and testifies, and prosecutor Patrick Fitzgerald, who demanded her jailing, took pains in court to say they were not trying to deny reporters their sources.

Hogan noted he had let Miller remain free while she appealed up to the Supreme Court. He added that a Supreme Court decision 33 years ago that reporters could not always keep their sources' names secret had not destroyed press coverage of government scandals, including Watergate.

"This is not a one-person effort," Fitzgerald said. He pointed out that Hogan and the U.S. Circuit Court of Appeals had agreed he had showed that Miller's testimony was essential and not obtainable elsewhere. And the Supreme Court refused to hear Miller's challenge to Hogan's civil contempt of court citation.

"In the end, the law must be obeyed," Fitzgerald argued, citing decisions by President Truman not to seize steel mills and by President Nixon to release Watergate tapes once the Supreme Court ruled against them.

"I do not view myself as above the law," Miller told Hogan. "You are right to send me to prison."

But she said she had an obligation to protect a confidential source: "I do not make confidentiality pledges lightly, but when I do I must honor them."

Fitzgerald is investigating whether a crime was committed, and by whom, in the Bush administration's leak of the name of undercover CIA officer Valerie Plame.

Columnist Robert Novak first published Plame's name in July 2003, days after her husband, former U.S. Ambassador Joe Wilson, publicly disparaged President Bush's rationale for invading Iraq. Administration detractors said the leak was designed to punish Wilson for his criticism by ending his wife's undercover career.

Time magazine reporter Matt Cooper, who identified Plame after Novak, avoided the same jail term given Miller. Also held in contempt by Hogan for refusing to testify before Fitzgerald's grand jury, Cooper shocked the packed courtroom Wednesday by announcing that his source had contacted him just hours earlier to give him specific, unambiguous permission to tell the grand jury about their conversations.

Miller never wrote a story naming Plame, and there's been no official explanation why Fitzgerald wants Miller's testimony. The court rulings upholding his effort have blacked out details of his reasons. New York Times' attorney Floyd Abrams speculated Wednesday that "most likely somebody testified to the grand jury that he or she had spoken to Judy."

News executives and observers, however, did not think that details of the case would limit its impact on journalism.

"This investigation -- whether it intended to or not -- is intimidating sources and journalists," said Jane Kirtley, professor of media ethics and law at the University of Minnesota. "In a climate of increasing secrecy, it raises a question of whether the people will be reduced to just getting the official line from the government."

Grasping for a silver lining outside the courthouse, New York Times executive editor Bill Keller said maybe someone in government with information to disclose will understand the lengths to which reporters will go to protect sources.

Brant Houston, executive director of Investigate Reporters and Editors, predicted, "There will still be stories based on anonymous sources. But this will make every reporter think twice about granting anonymity, which they really should do anyway."

Deanna Sands, Omaha, Neb., World-Herald managing editor and president of Associated Press Managing Editors Association, was less optimistic.

"It raises the specter of government intervention in the gathering of information and has to be noticed by anyone considering talking to a reporter," Sands said in a telephone interview. "It's more likely to give people pause.

"Unfortunately, we'll never know how many good stories we won't get to write."

The Miller-Cooper case has been seen as a test of press freedom, and numerous media groups have lined up behind the reporters. Thirty-one states and the District of Columbia have shield laws protecting reporters from having to identify their confidential sources, though there is no federal protection. Congress is considering a bill, however, and Cooper and others involved in the case have urged passage.

Hogan and Fitzgerald stressed that they were not asking Miller to identify a whistleblower but rather a possible criminal. Disclosure of an undercover intelligence officer's identity can be a federal crime if done intentionally and the leaker knew of the secret status.

Hogan said allowing Miller to defy the courts would be a step toward anarchy. He saw "a realistic possibility that confinement might cause her to testify" or persuade her source to give her the same release Cooper's gave him.

Miller was seen entering the Alexandria, Va., Detention Center, where she could remain until the grand jury expires Oct. 28.