Chief Judge Thomas F. Hogan of U.S. District Court in Washington, D.C. ordered that Time magazine reporter Matthew Cooper go to jail and the magazine pay a daily fine of $1,000 for as long as he refuses to testify in court. The ruling, dated August 6, was made public this week. The penalties were suspended after attorneys for Time and Cooper filed an appeal with the federal appellate court in Washington, D.C.
"The prospect of a U.S. reporter being jailed is deeply disturbing and sends a terrible message to journalists around the world, who are routinely compelled to reveal sources and cooperate with government investigations," CPJ Executive Director Ann Cooper said.
The grand jury was convened after the columnist Robert Novak named Valerie Plame as a CIA operative in his syndicated column on July 14, 2003. Plame is married to former U.S. diplomat Joseph C. Wilson IV, who was enlisted by the Bush administration to travel to Niger to investigate allegations that Iraq was attempting to buy enriched uranium.
Novak's column, which cited two unnamed administration sources, appeared eight days after Wilson wrote an op-ed in The New York Times that challenged the administration's assertions on the uranium issue. Other reports surfaced later with Plame's identity, some suggesting that administration officials leaked the name in retaliation against Wilson.
The willful disclosure of an undercover CIA officer is a federal crime under the Intelligence Identities Protection Act of 1982. U.S. Attorney Patrick Fitzgerald, the special prosecutor in the case, issued subpoenas against two journalists who reported on the case, Time's Cooper and Tim Russert of NBC News. Russert agreed to be interviewed by prosecutors last weekend, but was not asked any questions that required him to reveal confidential sources. Cooper declined to answer the subpoena.
In his ruling, Hogan wrote that "Cooper and Russert have no privilege, qualified or otherwise, excusing them from testifying before the grand jury in this matter." In the decision (http://www.dcd.uscourts.gov/04ms296.pdf), Hogan cited the 1972 Supreme Court case of Branzburg v. Hayes and wrote that "there is no First Amendment privilege exempting members of the press from appearing before grand juries upon issuance of valid subpoena."
The ramifications of the 5-4 Branzburg decision, however, are the subject of ongoing debate. In a concurring opinion in Branzburg, Justice Lewis Powell Jr. recognized a limited privilege for reporters.
In his own decision, Hogan notes that U.S. courts in earlier cases with "various factual scenarios" have found "that a judge should apply a balancing test." This test weighs the public interest in protecting the identify of confidential sources used by journalists versus the public interest in prosecuting crimes. In addition, federal trial courts have ruled that journalists should not be compelled to testify until all other avenues of investigation have been exhausted.
The Department of Justice has recognized this balancing test in developing its own guidelines on when to subpoena journalists. While rejecting the validity of the balancing test, Hogan nonetheless said the Department of Justice had adhered to its guidelines in the CIA leak case.
But Fitzgerald has not revealed the names of other witnesses from whom he has elicited testimony, making it impossible for the public to determine whether the balancing test was met.