must reveal sources in CIA leak case

New York, February 15, 2005
—The Committee to Protect Journalists is alarmed that a federal appeals court has ruled that two journalists can be jailed for not revealing their confidential sources.

A panel of three judges for the U.S. Court of Appeals in Washington, D.C., ruled today that Time magazine, Time White House correspondent Matthew Cooper, and New York Times correspondent Judith Miller, must either provide evidence or testify before a criminal grand jury in the CIA leak case.

The journalists could be jailed for up to 18 months, and Time magazine faces a daily fine of $1,000 for refusing to turn over written materials also demanded by prosecutors in the case. The case will now return to the U.S. District Court, presided over by Chief Justice Thomas F. Hogan, whose original decision has been now upheld by the appellate court, for sentencing. No date has been set.

Today’s decision, written by Circuit Judge David Sentelle, with the appellate court’s two other judges concurring, found that “there is no First Amendment privilege protecting the evidence sought” by prosecutors from the journalists, and that “if any such common law privilege exists, it is not absolute, and in this case has been overcome.” Eight-and-a-half pages of the 83-page decision are redacted to maintain the secrecy of the ongoing grand jury proceedings.

The publisher of The New York Times, Arthur Sulzburger, Jr., said in a statement that he is “deeply dismayed” at the decision, adding that it could have a detrimental impact on future reporting since many important stories rely on journalists being able to protect their sources. “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,” noted Sulzburger.

Lawyers for the journalists say they plan to appeal the decision to the Circuit Court in Washington, D.C., and, if necessary, to the Supreme Court. But the jail term could still be imposed before either high court rules.

Click here to read the decision by the U.S. Court of Appeals for the District of Columbia Circuit.