Tuesday, September 28, 2004

Reporters Put Under Scrutiny in C.I.A. Leak

The New York Times
September 28, 2004

Reporters Put Under Scrutiny in C.I.A. Leak

Walter Pincus, a 71-year-old Washington Post reporter who has earned the respect and envy of his colleagues for the government contacts he has cultivated in more than 30 years at the paper, walked into a conference room at a Washington law firm two weeks ago and read a statement.

"As someone who covers national security and intelligence, I depend on confidential sources more than most reporters," he told Patrick J. Fitzgerald, the special prosecutor appointed to investigate the disclosure to journalists of the identity of a covert C.I.A. agent, Valerie Plame. "My sources take a chance when they trust me with information that could cost them their jobs or have other serious consequences. In turn, I will protect them."

Mr. Pincus proceeded to answer Mr. Fitzgerald's questions about two once-confidential conversations with administration officials, identifying one person. Mr. Pincus, who says he did so with the officials' blessings, became at least the fourth reporter to testify in the investigation.

Leak investigations are often halfhearted and one-sided enterprises. Suspected leakers are questioned, not always vigorously or under oath, and the source of the disclosure is seldom found. The journalists who could say for sure are almost never subpoenaed.

The Plame case is different. This is largely because, unlike most leaks, the disclosure of an undercover intelligence agent's identity is a felony. The disclosure of Ms. Plame's identity, moreover, may have been motivated by politics. And the investigation inside the government, in which the president, the vice president and many other officials have been questioned, seems to have been both exhaustive and inconclusive.

The only remaining witnesses to the crime are the journalists who received the information about Ms. Plame, leaving them to make agonizing choices against a backdrop of diminishing legal protection. In recent years, courts have become increasingly skeptical of a journalistic article of faith: that the benefits to society of the information provided by confidential sources outweigh the costs to the justice system of allowing reporters to protect their sources.

Mr. Pincus and the other reporters who have testified, some under the threat of jail, all say they found an appropriate middle ground. They say that their sources had authorized them to testify and that they had betrayed no promises. Mr. Pincus said one official gave him permission to repeat a conversation but not to name the official. The Post reported on the case in October, citing a journalist there, later identified as Mr. Pincus.

But experts in law and journalism are nonetheless at odds over whether the spectacle of reporters testifying about people who gave them information in confidence sends the wrong message, to the public and to potential sources. Some say it may do lasting damage to the bonds of trust built between sources and journalists over several decades.

"Every time I hear about one of these reporters going in to speak about their sources, my stomach drops to my shoes," said Jane Kirtley, a professor of media ethics and law at the University of Minnesota. "We're in a crisis on this. I'm absolutely terrified about how this is going to turn out for media credibility."

Brian A. Sun, a former federal prosecutor who now represents the atomic scientist Wen Ho Lee, said the press should be more concerned about publishing classified information than about protecting sources.

"It's aiding and abetting a crime," Mr. Sun said of the journalists who published Ms. Plame's name.

He added that journalists should face the same sanctions as other citizens. "People are compelled to talk all the time," he said, "or they get thrown in the can for contempt. Very few prosecutors have been willing to take on the press, historically. Pat Fitzgerald is a tough guy. Other prosecutors may now be willing to take on the press."Mr. Fitzgerald is using a new tactic that may have implications in future investigations. He has asked White House officials to sign forms waiving the confidentiality of any discussions with reporters.

In addition to the four reporters who have testified in the Plame matter, Judith Miller of The New York Times is fighting a subpoena in the investigation. And Robert Novak, the columnist who identified Ms. Plame in the first place as "an agency operative on weapons of mass destruction," citing "two senior administration officials" as his sources, is not saying whether he has been subpoenaed or whether he has provided any information to prosecutors.

The subpoenas are part of what lawyers call an alarming trend.

Several reporters have been held in contempt for refusing to name their sources in a civil suit brought by Dr. Lee saying the government committed privacy violations. Dr. Lee, a scientist at the Los Alamos nuclear laboratory in New Mexico, was suspected of espionage in 1999 but ultimately pleaded guilty to a lesser charge. A television reporter in Rhode Island has been held in contempt for refusing to say who gave him a surveillance tape.

Mr. Fitzgerald, who was named a special prosecutor in the Plame case after Attorney General John Ashcroft recused himself, is also looking into whether Ms. Miller and another Times reporter were tipped off about developments in his investigation of an Islamic charity. In that case, he is acting as the United States attorney in Chicago.

All these reporters face difficult legal terrain. Under a 1972 Supreme Court decision, Branzburg v. Hayes, reporters have essentially no protection from grand jury subpoenas. An influential federal appeals court judge in Chicago, Richard A. Posner, ruled last summer that reporters had little right to resist subpoenas for their sources and information in any setting. In the Plame case, Thomas F. Hogan, chief judge of Federal District Court in Washington, has repeatedly ruled that reporters subpoenaed in the case must testify.

The four reporters who have testified in the Plame case say they talked about conversations with I. Lewis Libby, Vice President Dick Cheney's chief of staff.

Mr. Pincus, the last to testify, also discussed a conversation with another administration official. And Matthew Cooper, a reporter for Time magazine who testified on Aug. 23 about Mr. Libby, received a second subpoena on Sept. 14, for information from other officials. Mr. Cooper is fighting that subpoena.

Earl Caldwell, a journalism professor who was involved in the 1972 Supreme Court case as a reporter for The Times, said he was troubled by the reporters' decisions to testify.

"In the public mind, it gets confusing," Mr. Caldwell said. "How are all these reporters going in and testifying? We're getting in a position where people will see us as an arm of the government."

Mr. Libby's lawyer, Joseph A. Tate, said Mr. Libby had signed a form authorizing reporters to tell prosecutors about their conversations with him.

But lawyers for the reporters said the reporters refused to accept Mr. Libby's waiver at face value. It was, they said, possible that Mr. Libby signed it because refusing to do so would cast suspicion on him or endanger his job.

The reporters relied instead on conversations with Mr. Libby or messages conveyed by lawyers. "I told them they had nothing to hide and could rely upon the waiver," Mr. Tate said.

Mr. Pincus said: "Under the circumstances, I had complete confidence in the assurances I received. I refused to do anything that would identify or tend to identify a confidential source."

James C. Goodale, a lawyer at Debevoise & Plimpton in New York and a former general counsel of The New York Times Company, said that none of the reporters should have testified and that they had done grave damage to a bond of trust that had roots in the 1970's.

A reporter for The Times, M. A. Farber, spent 40 days in jail in 1978 rather than name a source. "You ought not go back to a source from whom you have obtained confidential information and ask to be absolved of your obligation," Mr. Farber said. "The reporter always has the option of keeping his mouth shut. If he isn't willing to accept that responsibility, he oughtn't be in the game in the first place."

Robin Bierstedt, a deputy general counsel at Time Inc., disputed that reasoning. "Confidential source protection is based on the reporter's protection of the source," Ms. Bierstedt said. "If the source no longer wants that protection, and informs the reporter of that fact, the reporter should be free to testify, if he or she chooses."

The current investigation has its roots in a critical Op-Ed commentary published in The Times on July 6, 2003, about one of the justifications offered by the Bush administration for the war in Iraq. The article, by Joseph C. Wilson IV, a former ambassador, recounted a trip he had made to Niger for the C.I.A. Mr. Wilson concluded that the administration later manipulated intelligence about whether Iraq had sought to buy uranium from Niger.

In the days after the commentary appeared, a number of reporters were told that Mr. Wilson's wife, Ms. Plame, was a covert C.I.A. agent.

The motive for the disclosure of Ms. Plame's identity is unclear. Mr. Wilson has said it was payback for his criticism. Others have suggested that it was meant to undermine Mr. Wilson's conclusions by dismissing his trip as a boondoggle arranged by his wife.

Either way, the disclosure may well have violated a 1982 law that makes it a crime for people with access to classified information to intentionally disclose agents' identities. The law does not generally apply to people without such access, like reporters.

The real mystery in the investigation, lawyers involved in it say, is what Mr. Novak has done. Mr. Novak's lawyer, James Hamilton, declined to comment. There are four essential possibilities.

Mr. Novak may not have been subpoenaed, which would be curious. He may have asserted the reporter's privilege, but there is no reason to think that Judge Hogan would have ruled in his favor.

He may have asserted his rights under the Fifth Amendment. But Mr. Novak faces no real peril under the 1982 law, and Mr. Fitzgerald could in any event require him to testify by offering him immunity. Or Mr. Novak may have testified.

Mr. Wilson said he was distressed about the conduct of White House officials. "None have stepped forward and said, 'Yeah, I'm the one who made the disclosure to Bob Novak and others,' " he said.

The investigation, Mr. Wilson added, carries its own risks. "Anything that further circumscribes the ability of the press to protect its sources is bad for the American people," he said.