- The Washington Times - Wednesday, December 8, 2004


Federal prosecutors yesterday said reporters have limited legal protection while an attorney for two writers who could go to jail for refusing to divulge their sources argued for a broader interpretation of the Constitution.

“There is a level of legal protection,” defense attorney Floyd Abrams told a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.

Mr. Abrams represents Time magazine’s Matthew Cooper and Judith Miller of the New York Times, who have been subpoenaed in the grand jury investigation into the leak of an undercover CIA officer’s name.

In October, the reporters were held in contempt by a federal judge for refusing to disclose their confidential sources. Both reporters face up to 18 months in jail pending the outcome of their appeal.

Assistant U.S. Attorney James Fleissner argued that a First Amendment protection exists for reporters, but only in a “very, very narrow” way. It applies, he argued, in cases where there has been intimidation or bad-faith investigations — and not in the case of Miss Miller and Mr. Cooper.

The special prosecutor in the case, U.S. Attorney Patrick Fitzgerald, is investigating whether a crime was committed when someone leaked the identity of CIA officer Valerie Plame. Her name was published in a 2003 column by Robert Novak, who cited two senior administration officials as his sources.

The column appeared after Mrs. Plame’s husband, former Ambassador Joseph Wilson, wrote a newspaper opinion piece criticizing President Bush’s assertion in his State of the Union address that Iraq had sought uranium in Niger. The CIA had asked Mr. Wilson to check out the uranium claim. Mr. Wilson has said he believes his wife’s name was leaked as retaliation for his critical comments.

Disclosure of an undercover intelligence officer’s identity can be a federal crime if prosecutors can show the leak was intentional and the person who released that information knew of the officer’s secret status.

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