Ruling upheld against reporters

A federal appeals court yesterday upheld a contempt of court ruling against two reporters who refused to identify their sources to investigators looking into whether the Bush administration illegally exposed an undercover CIA operative in 2003.

Time magazine’s Matthew Cooper and the New York Times’ Judith Miller must comply with federal grand jury subpoenas seeking information about their sources or face jail time, a three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled.

The two reporters, who are free pending further appeals, were ordered jailed last fall by a federal judge for up to 18 months after they refused to cooperate with prosecutors investigating whether any laws were broken when the identity of CIA officer Valerie Plame was leaked to syndicated columnist Robert Novak.

In unanimously affirming the lower court’s order yesterday, appeals court Judges David B. Sentelle, Karen L. Henderson and David S. Tatel found: “There is no First Amendment privilege protecting the evidence” being sought in the case.

Judge Sentelle wrote that if such a privilege exists, “it is not absolute, and in this case has been overcome” by the findings of special prosecutor Patrick Fitzgerald, the U.S. attorney in Chicago investigating the Plame matter.

A lawyer representing Mr. Cooper and Ms. Miller said he would seek to have the ruling reversed by the full appeals court. A story posted on the New York Times’ Web site yesterday said that if that effort fails, the reporters likely will ask the Supreme Court to hear the case.

The case stems from a 2003 column by Mr. Novak, who wrote that “two senior administration officials” had told him that Mrs. Plame was a CIA employee.

Mr. Novak wrote the column about one week after Mrs. Plame’s husband, Joseph C. Wilson, a former diplomat in Africa and Iraq, had penned an opinion column for the New York Times disputing President Bush’s statement that Iraq had sought to obtain uranium from Niger.

It is not clear whether the investigators who are seeking information from Mr. Cooper and Ms. Miller also have subpoenaed Mr. Novak, who repeatedly has declined to comment on the matter, news reports said.

Three days after Mr. Novak’s column appeared, Time magazine published on its Web site an article by Mr. Cooper and two colleagues, saying, “Some government officials” had told Time in a similar fashion as they had told Mr. Novak that Mrs. Plame was a CIA official.

Norman Pearlstine, the editor in chief of Time, yesterday said the right to protect confidential sources is fundamental to a free press.

“Without that right, important information that should be available to the public would never see the light of day,” he said. “In the United States, no journalist should have to go to jail simply for doing his or her job.”

Ms. Miller never published an article about Mrs. Plame, although the New York Times said she conducted interviews in contemplation of an article.

New York Times publisher Arthur Sulzberger Jr. said, “It would create a dangerous precedent that would erode the freedom of the press” if Ms. Miller is sent to jail for not revealing her confidential sources for an article that wasn’t published.

Mr. Sulzberger said the protection of confidential sources was “critically important” to such stories as those that exposed the Watergate scandal and practices of the tobacco industry. The New York Times, he said, would challenge yesterday’s decision and advocate for a “federal shield law that will enable the public to continue to learn about matters that directly affect their lives.”

The advocacy group Reporters Without Borders said 31 states and the District of Columbia have such “shield” laws protecting reporters from naming sources.