T Nation

Jailing Reporters


Reporters threatened with jail? Are unidentified sources critical to reporting the news or an excuse not to dig further?

June 30, 2005
Judge Warns Reporters They Face Jail in a Week


WASHINGTON, June 29 - With mounting frustration and a hint of anger, a federal judge said at a hearing Wednesday that he would send two reporters to jail in one week if they did not agree to testify before a grand jury about their confidential sources in the meantime.

Lawyers for the reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, said their clients would accept jail time rather than testify.

The judge, Thomas F. Hogan of Federal District Court here, added that he would also impose very large fines against Time Inc., in an effort to force the company to obey a court order directing it to turn over documents in the investigation.

A lawyer for Time Inc., Theodore J. Boutrous Jr., told Judge Hogan the company was still considering whether to comply with the order.

"We are grappling with those issues," Mr. Boutrous said. "Time is part of a public company and has a deliberative process to work through these issues."

The grand jury is looking into the possibly unlawful disclosure of the identity of a covert C.I.A. operative, Valerie Plame.

Judge Hogan expressed surprise that a public company like Time Warner, Time Inc.'s parent, would even consider violating a final court order. The Supreme Court turned down appeals in the case on Monday.

"The only way we operate in this society, in a democratic society, is by the rule of law and to have people obey court orders," Judge Hogan said.

Patrick J. Fitzgerald, the special prosecutor in the case, said Time has no choice but to comply with the order.

"I don't understand what Time can deliberate about," he said. "They don't have a right to break the law. We shouldn't allow people to think that court orders are sort of optional."

Dawn Bridges, a spokeswoman for Time Inc., declined to comment about whether the company would comply with the order.

Mr. Fitzgerald said a decision by Time Inc. to comply "could short-circuit a lot of issues in the case."

If Time supplies the documents - which include Mr. Cooper's notes - that could serve as a substitute for jailing Mr. Cooper, Mr. Fitzgerald suggested.

In an interview, Mr. Cooper expressed gratitude to his employer for fighting the case and said he hoped it would keep his secrets.

"Time Inc. has been a steadfast champion of the First Amendment, and they fought all the way to the Supreme Court," he said. "Corporations, though, are not individuals, and Time has to make a decision about what it's going to do. I would prefer that they not disclose the identity of my sources, but that's up to them."

Prof. John C. Coffee, an expert in corporate law at Columbia Law School, said Time Warner might have no choice but to comply.

"The board of directors and managers of a company are given great discretion to operate a company within boundaries set by law, including a lawful court order," he said. "I don't think they can continue to disobey a court order upheld by the United States Supreme Court."

A lawyer for Ms. Miller, Robert S. Bennett, said that a decision by Time to disclose documents could conceivably help his client as well.

"Maybe Time magazine is thinking of doing some things that might moot out the case," Mr. Bennett said.

Unlike Time, The New York Times has not been held in contempt because The Times does not have any relevant documents.

In October, Judge Hogan ordered the reporters jailed for up to 18 months or until the grand jury completes its work. Judge Hogan disclosed Wednesday that the grand jury's term will expire this October.

"We're talking 120 days, not 18 months," the judge said.

On two occasions at the hearing, Judge Hogan referred to Lewis Carroll, the creator of Alice in Wonderland.

"'The time has come, the Walrus said," Judge Hogan declared, suggesting that the case against the reporters and Time Inc. had reached its conclusion.

Later, he said he could not understand Time's positions.

" 'It's curiouser and curiouser' is what Alice said, when she got down the rabbit hole," Judge Hogan said.

Mr. Bennett, too, said there was something curious about the case.

"It's a big step," he said, "to put two people in jail who have committed no crime and who have been caught in what Your Honor has publicly referred to as 'a perfect storm.' " Judge Hogan made that comment in a speech in Montana in April, according to news reports.

The case has its roots in an opinion article published in The Times on July 6, 2003. In it, Joseph C. Wilson IV, a former diplomat, criticized a statement made by President Bush in that year's State of the Union address about Iraq's efforts to buy nuclear weapons material in Africa. Mr. Wilson based his criticism on a trip he had taken to Africa for the Central Intelligence Agency the previous year.

Eight days after Mr. Wilson's article was published, Robert D. Novak, the syndicated columnist, reported that "two senior administration officials" had told him that Mr. Wilson's wife, Ms. Plame, was "an agency operative on weapons of mass destruction."

Mr. Wilson has said the disclosure was payback for his criticism. Others have said that the disclosure put his criticism in context by suggesting that Mr. Wilson's trip was not a serious one but rather a nepotistic boondoggle.

Mr. Cooper's article about Ms. Plame appeared after the Novak column. Ms. Miller conducted interviews on the matter but did not publish an article.

Since Mr. Novak appears not to be facing jail time, he presumably supplied information to Mr. Fitzgerald. It is not clear why that did not conclude the investigation. Mr. Fitzgerald and Mr. Novak have consistently declined to discuss the matter.

In court on Wednesday, Mr. Fitzgerald said that Time has a moral and legal obligation to assist in the investigation.

"This case is not about a whistleblower," he said. "This case is about a potential retaliation against a whistle-blower."

Judge Hogan directed the reporters and Time to file papers by Friday about where the reporters should be jailed and the size of the fine. He said the fine, which had been $1,000 a day but was suspended pending appeals, may be made retroactive and is likely to increase to "a very large sum."


I don't know, sounds like reporters need to learn that just because they learn something, doesn't mean that they should decide to publish it.

They either need to be willing to sacrifice and do jail time or hold their tongue, or simply find a way to write their story without revealing something they shouldn't.

Neither option sounds that difficult to me.


These two reporters did not leak the information. I've read a couple of articles on this case, and I still have no idea why they're being asked to reveal their sources. I don't have time to research it further, but it seems like the questions are:

a) is it a lawful court order? The answer seems to be yes. But has the law been applied in good faith?
b) why did they ask these two particular reporters to expose their sources? is someone motivated to cripple their careers? (seems unlikely)
c) which is worth more for them... going to jail but being able to keep credibility (and thus work in the future), or obeying the rule of law?



That's why I have a lot of interest in this case.

Do you stick by your principles or obey the law. Tough call. It's an interesting drama playing out.

I am on the fence which is unusual for me so I am interested in hearing some arguments for or against.


one question: has Novak the traitor been arrested yet, or is he still at large ? ? ?

I mean, why don't they go after Novak the traitor? Why go after the ones that didn't rat? Are they being punished for not ratting?


I think part of the problem is that the news media seems to be giving us intentionally skimpy details. I have never, ever read about a case that was this confusing after reading several different sources. I'm sure we could find some court documents, if any of us had the time or inclination... which I do not, unfortunately.


This is a good way to keep reporters from doing their jobs.

Novak should be forced to divulge his source as he is the doofus that 'outed' Plame.

This is a joke!


Is it a case of government out of control or news media out of control and trying to hide it?

It is disturbing for many reasons.

Why tell a reporter a CIA agents identity?

Why would the reporter divulge said identity?

Why lock up the reporter?

I would like to see a serious discussion of this without turning into the usual right vs left bullshit.


With the base of the investigation being the investigation of the disclosure of the identity of a C.I.A. operative, it looks to me that fighting over the legitimacy of the court order is just a way to frustrate and side track the efforts of the investigators. Looks like it is working, too. Simply put, they are trying to obscure the fact that they did something wrong by making it appear as though the Judge is a steamroller, also allowing the reporters to appear as martyrs.
That may also be the reason for the Carroll refrences from the Judge.
Is that a straw man, or some other distraction strategy?


It's a bit tough for this to be a left vs. right issue (at least for me), because it's so convoluted:

1) The prosecutor wants to show impropriety on the part of the Bush Administration (could be seen as left attack on the right, if we don't assume the prosecutor is unbiased)

2) The prosecutor goes after reporters who report on the issue, but leaves alone the guy who actually gets the information... is this left on left crime? I am not familiar with either reporter's politics, so I'm taking a stab in the dark.

I don't think the prosecutor cares about the case against the reporters at all... he's trying to show a link to the administration to either a)make a name for himself or b)shame Bush. Or, I suppose, c) he could be motivated by righteousness. No idea. I really wish someone would post with more details that might shed some light on this.


Calling BB....Calling BB !!


Good luck with that. The media, as a whole, is a business. They are driven by ratings. Reporters seem to forget that their human.

Freedom of the press does not equate to a license to freely compromise the safety and privacy of others. So, when do reporters lose their humanity?

There's a quote somewhere about the state of the media today that really sums it up quite nicely. If I can find it, I'll post.


Lol, I actually was thinking of him. I wonder if there's BB signal we can shine into the sky?



I know they didn't "leak" it originally, but publishing it made it very clear that the leak had happened.

Now, by not revealing their leak, the are protecting someone (supposedly inside the administration) from prosecution.

Assume you overheard something vital to national interest while you were visiting the White House. Now a court hauls you in and asks you to reveal what you know.

Should you are should you not support the quest for truth? Or, do you decide this is a political game and decide to play a hand in the game yourself?


Why go after reporters that did not print the leaked information?

Novak printed the leaked information.

By going after reporters that did not do anything wrong the prosecutor is trying to send a message to reporters.

Why is Novak not one of the reporters being held in contempt.

If Novak divuled the persons name that leaked Plame's identity then this would be over.

The MSM is a joke but this can not be any more cut and dry.


I think he's already stuffing his face with canolis and gelatos.


The special prosecuter is a bad ass former rugby player.

Somebody is going down on this one.

Who appointed him? I would assume the Bush administration did, but I have not found confirmation.

He has already questioned the president about this case.


Here's that quote I was looking for. It's actually a few paragraphs long, but I always thought it summed up the state of the media today.

This is from a novel called "Executive Orders," thus the reference from a character named Plumber's point-of-view. The last paragraph is probably the most applicable.

The problem with his profession was one that its members almost never talked about, just as a wealthy man will not often bemoan low taxes. Back in the 1960s, a man named Sullivan had sued the New York Times over defamation of character, and demonstrated that the newspaper had not been entirely correct in its commentary. But the paper argued, and the court had agreed, that in the absence of true malice, the mistake was not really culpable, and that the public's interest in learning the goings-on in their nation superseded protection of an individual. It left the door open for suits, technically, and people did still bring action against the media, and somtimes they even won. About as often as Slippery Rock University knocked off Penn State.

That court ruling was necessary, Plumber thought. The First Ammendment guaranteed freedom of the press, and the reason for it was that the press was America's first and, in many ways, only guardian of freedom. People lied all the time. Especially people in government, but others, too, and it was the job of the media to get the facts -- the truth -- out to the people, so that they could make thier own choices.

But there was a trap built into the hunting license the Supreme Court had issued. The media could destroy people. There was recourse against almost any improper action in American society, but reporters had such protections as those once enjoyed by kings, and, as a practical matter, his profession was above the law. As a practical matter, also, it worked hard to stay that way. To admit error was not only a legal faux pas, for which money might have to be paid. It would also weaken the faith of the public in their profession. And so they never admitted error when they didn't have to, and when they did, the retractions were almost never given the prominence of the initial, incorrect, assertions -- the minimum necessary effort defined by lawyers who knew exactly the height of the castle walls they defended. There were occasional exceptions, but everyone knew that exceptions they were.

Plumber had seen his profession change. There was too much arrogance, and too little realization of the fact that the public they served no longer trusted them -- and that wounded Plumber. He deemed himself worthy of that trust. He deemed himself a professional descendant of Ed Murrow, whose voice every American had learned to trust. And that was how it was supposed to be. But it wasn't, because the profession could not be policed from without, and it would never be tusted again until it was policed from within. Reporters called down every other profession -- medicine, law, politics -- for failing to meet a level of professional responsibility which they would allow no one to enforce on themselves, and which they themselves would rarely enforce on their own. Do as I say, not as I do was something you couldn't say to a six-year-old, but it had become a ready cant for grown-ups.


That's a good quote and to the point.

Many of the old time reporters would not have had to deal with this. Ernie Pyle for example was a "soldiers reporter" but I don't think he would have outed an OSS agent to get a story.

I think I would err on the side of caution but these reporters seem to have thrown caution to the wind.

It still comes back to sticking to your principles orbeying the law (the court order).


I've always hated that arch-conservative cocksucker. Now I have another reason.