Reporter From Time Is Held in Contempt in C.I.A. Leak Case


Published: August 10, 2004

Federal judge in Washington held a reporter for Time magazine in contempt of court yesterday and ordered him jailed for refusing to name the government officials who disclosed the identity of an undercover C.I.A. officer to him. The magazine was also held in contempt and ordered to pay a fine of $1,000 a day.

The judge, Thomas F. Hogan, chief judge of the Federal District Court in Washington, suspended both sanctions while Time and its reporter, Matthew Cooper, pursued an appeal. But the judge firmly rejected their contention that the First Amendment entitled journalists to refuse to answer a grand jury's questions about confidential sources.

"The information requested," Judge Hogan wrote, "is very limited, all available means of obtaining the information have been exhausted, the testimony sought is necessary for completion of the investigation, and the testimony sought is expected to constitute direct evidence of innocence or guilt."

The ruling came in an investigation into whether Bush administration members illegally disclosed the identity of a covert C.I.A. officer.

Legal experts said yesterday that the potential jailing of a journalist represented perhaps the most significant clash between federal prosecutors and the news media since the 1970's. The case is one of several making their way through federal courts in which journalists have been ordered to reveal their sources.

The subpoenas for Mr. Cooper and other journalists were issued by a special prosecutor, Patrick J. Fitzgerald, trying to learn who told the syndicated columnist Robert Novak the identity of an undercover C.I.A. officer, Valerie Plame. Ms. Plame is married to Joseph C. Wilson IV, a former diplomat who asserted in a July 6, 2003, Op-Ed article in The New York Times that President Bush had relied on discredited intelligence when he said, in his 2003 State of the Union address, that Iraq had sought uranium from Africa.

On July 14, 2003, Mr. Novak wrote in his column that "two administration officials" told him that Ms. Plame "is an agency operative on weapons of mass destruction." Disclosing the identity of a covert officer for the Central Intelligence Agency officer can be a crime. Mr. Wilson has suggested that the White House might have leaked his wife's name as retribution for his criticism of the president.

It is not known whether Mr. Novak has received a subpoena or, if he did, how he responded. His lawyer, James Hamilton, declined to comment yesterday.

On July 17, 2003, Time reported that "some government officials" had disclosed Ms. Plame's identity to the magazine.

Mr. Bush, Vice President Dick Cheney and a number of White House officials have been questioned in the inquiry, which Mr. Fitzgerald, the United States attorney in Chicago, took over after Attorney General John Ashcroft recused himself in December.

Like Mr. Cooper, Tim Russert, of the NBC program "Meet the Press," received a subpoena in May. In a decision dated July 20 but made public yesterday, Judge Hogan ordered Mr. Russert and Mr. Cooper to testify before the grand jury.

Mr. Cooper refused, leading to the contempt order yesterday. By contrast, Mr. Russert agreed to cooperate.

In a statement, NBC said Mr. Russert was interviewed under oath by prosecutors on Saturday. NBC said Mr. Russert had not been a recipient of a leak and was not asked questions that would have required him to disclose a confidential source.

"The questioning focused on what Russert said when Lewis (Scooter) Libby, Vice President Dick Cheney's chief of staff, phoned him last summer," NBC reported Saturday. "Russert told the special prosecutor that at the time of the conversation he didn't know Plame's name or that she was a C.I.A. operative and did not provide that information to Libby."

A spokesman for Mr. Fitzgerald declined to comment on the investigation.

A Washington Post reporter, Glenn Kessler, was interviewed by prosecutors in June. The Post reported then that he had testified about conversations with Mr. Libby at Mr. Libby's request and that he did so without violating any promises to confidential sources.

A second Post reporter, Walter Pincus, said he received a subpoena yesterday. He referred questions about whether The Post would challenge the subpoena to the paper's lawyers. Neither The Post's in-house lawyers nor its outside lawyer, Seth P. Waxman, responded to messages seeking comment.

Legal experts, including some sympathetic to the arguments by Mr. Cooper and Time, said the appeals court was unlikely to reverse Judge Hogan's decision.

"I think we're going to have a head-on confrontation here," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "I think Matt Cooper is going to jail."

Time's managing editor, James Kelly, said the judge had given too little weight to the importance to the public of allowing reporters to pledge confidentiality to their sources in exchange for important information.

Several reporters, including James Risen and Jeff Gerth of The New York Times, have been ordered to reveal their confidential sources in a case brought by Wen Ho Lee. Mr. Lee, a scientist at the Los Alamos nuclear laboratory, was suspected of espionage in 1999 but ultimately pleaded guilty to a single felony count of mishandling secrets. Mr. Lee is suing the federal government, alleging violations of his privacy.

Later this month, Judge Thomas Penfield Jackson, also of the Federal District Court in Washington, is scheduled to rule on a motion by Mr. Lee's lawyers to hold the reporters in contempt. Mr. Lee's case is a civil one, seeking money, while the Plame investigation is a criminal one.

In his ruling in the Plame matter last month, Judge Hogan said a federal Supreme Court decision from 1972 known as Branzburg required Mr. Cooper to disclose his sources.

Judge Hogan wrote, "Branzburg makes clear that neither the First Amendment nor the common law protect reporters from their obligations shared by all citizens to testify before the grand jury when called to do so."

Floyd Abrams, a lawyer for Time and Mr. Cooper, said the decision would make it harder for reporters like Mr. Cooper to do their jobs.

"The story was essentially critical of the administration for leaking information designed to focus the public away from what Ambassador Wilson was saying was true and toward personal things," Mr. Abrams said of the Time article. "That sort of story, about potential government misuse of power, is precisely the sort of thing that is impossible to do without the benefit of confidential sources."


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