Reporter for Times Is Facing Jail Time

Robert Novak is the reporter who outed the CIA Agent. Why isn't he the one being persued??

The New York Times
October 8, 2004

Reporter for Times Is Facing Jail Time
By ADAM LIPTAK

WASHINGTON, Oct. 7 - A federal judge held a reporter for The New York Times in contempt of court on Thursday for refusing to name her sources to prosecutors investigating the disclosure of the identity of a covert C.I.A. agent.

The reporter, Judith Miller, published no articles about the agent, Valerie Plame. Even so, the judge, Thomas F. Hogan, of United States District Court in Washington, ordered her jailed for as long as 18 months, noting that she had contemplated writing such an article and had conducted interviews for it.

Judge Hogan suspended the sanction until a planned appeal is concluded, and he released Ms. Miller on her own recognizance.

"We have a classic confrontation between competing interests," Judge Hogan said, speaking from the bench. "Miss Miller is acting in good faith, doing her duty as a respected and established reporter who believes reporters have a First Amendment privilege that trumps the right of the government to inquire into her sources."

But Ms. Miller was mistaken, Judge Hogan ruled. "Miss Miller has no right to decline to answer these questions," he said.

The investigation seeks to determine who told the syndicated columnist Robert Novak and other journalists that Ms. Plame was a C.I.A. official. A 1982 law makes it a crime to disclose the identities of undercover agents in some circumstances.

Ms. Miller spoke briefly at the hearing, affirming that she would indeed refuse to answer questions about confidential communications.

Speaking to reporters outside the courthouse afterward, she said: "I'm very disappointed that I've been found in contempt of court for an article I never wrote and The Times never published. I find it truly frightening that journalists can be put in jail for doing their jobs."

According to an earlier decision in the case, Ms. Miller conducted reporting about Ms. Plame and her husband, Joseph C. Wilson IV, a former diplomat. She contemplated writing an article, Judge Hogan wrote, but she never did.

The investigation has its roots in an Op-Ed article Mr. Wilson wrote for The Times in July 2003. It was critical of a justification offered by the Bush administration for the war in Iraq.

Ms. Plame's identity was disclosed by Mr. Novak in his column eight days later. "Two senior administration officials," Mr. Novak wrote, identified Ms. Plame as "an agency operative on weapons of mass destruction." They spoke, he suggested in the column, in reaction to "the fire storm" that Mr. Wilson ignited.

The federal appeals court here is likely to hear arguments in Ms. Miller's case in November, her lawyers said. The case has been put on a fast track, and a decision could come by the end of the year or in January.

At the hearing Thursday, a prosecutor, Jim Fleissner, cited Branzburg v. Hayes, a 1972 Supreme Court case that, he said, required reporters to answer questions from grand juries about their confidential sources. The special counsel in the Plame investigation, Patrick J. Fitzgerald, had moved methodically and deferentially, Mr. Fleissner added, turning to journalists as a last resort.

"She was obligated to give evidence in relation to an investigation of matters concerning national security," Mr. Fleissner said of Ms. Miller. "We think confinement is the only sanction which has any hope of achieving what civil contempt means to achieve, which is a coercive influence."

Prosecutors have relied on secret filings in the case to explain to the judge why Ms. Miller's testimony is required. They have not disclosed the filings to Ms. Miller and her lawyers.

One of her lawyers, Floyd Abrams, asked Judge Hogan to release at least a summary of those filings to allow Ms. Miller to rebut them. "We haven't the faintest idea what their submission said," Mr. Abrams told Judge Hogan. The judge rejected the request, saying that grand jury rules require secrecy.

If Ms. Miller loses her appeal and the Supreme Court does not intercede, she could be jailed until the investigation is concluded, until she names her sources or for 18 months, whichever is soonest.

Arthur Sulzberger Jr., publisher of The Times, said he was dismayed by Judge Hogan's decision.

"The pending imprisonment of Judy Miller is an attack on the ability of all journalists to report on the actions of governments, corporations and others," he said in a statement. "The protection of confidential sources was critically important to many groundbreaking stories, such as Watergate, the health-threatening practices of the tobacco industry and police corruption."

In August, Judge Hogan ordered a reporter for Time magazine, Matthew Cooper, to be jailed in the Plame investigation, suspending the sanction pending appeal. Mr. Cooper then negotiated an agreement with the special prosecutor and testified about his conversations with I. Lewis Libby, Vice President Dick Cheney's chief of staff. He said that Mr. Libby had authorized him to testify.

Mr. Cooper received a second subpoena last month, this one seeking information about conversations with other government officials. He has refused to cooperate and will appear before Judge Hogan next week for a second contempt hearing.

Mr. Novak, who first published Ms. Plame's name, has declined to discuss what, if anything, he has done in the investigation.

Prosecutors in the Plame matter have asked people suspected of disclosing her identity to sign waivers that instruct journalists to reveal confidential conversations. Tim Russert of NBC and Glenn Kessler and Walter Pincus of The Washington Post also testified. They and Mr. Cooper said they relied on direct assurances from their sources or the sources' lawyers that they were free to do so rather than on the waivers.

Bill Keller, executive editor of The Times, said Ms. Miller would also not take waivers at face value. The officials who signed them, he said, may have done so because they feared that refusing would cast suspicion on them or endanger their jobs.

"This business of sources' signing waivers deserves a lot more attention," Mr. Keller said, speaking to reporters outside the courthouse. "This is going to be all the rage in both government and corporate circles as a way to intimidate employees into not letting reporters know when they see something amiss."