Editor’s Note: The following commentary was written and prepared for publication prior to an 11^th hour settlement between Special Prosecutor Patrick J. Fitzgerald and Matthew Cooper. That settlement caused the withdrawal of the civil contempt citations against Cooper and Time magazine.

Since at least two other journalists, Walter Pincus of the Washington Post and Judith Miller of The New York Times, face similar circumstances in coming weeks, with most facts of all the cases essentially the same, the Center decided to publish Ms. Leggett’s piece as is, without alterations that would have delayed publication.

We also note that the Center for Individual Freedom was preparing to file an amicus brief on behalf of Cooper and Time with the U.S. Court of Appeals for the D.C. Circuit when court action ceased.

Down the Slippery Slope to ‘Newspeak’

By VANESSA LEGGETT

This is not about another journalist going to jail. This is not about federal officials getting locked up for media leaks. Though any or all of these people could end up behind bars, and the government has already decreed the journalist should be the first.

This is about every American losing a significant measure of freedom, a certainty if the federal government succeeds in strong-arming Matthew Cooper or any other journalist into betraying confidential sources.

Fines and jail time are fast becoming job hazards for journalists who promise to protect unnamed sources. In three cases this month, seven reporters have been found in contempt of court for refusing to name confidential sources. Two other journalists under subpoena may soon raise that number to nine. Matthew Cooper is the only reporter who has been ordered jailed. The other six were fined by federal judges — one in an FBI investigation, five in former nuclear weapons scientist Wen Ho Lee's civil suit against the government. Cooper is embroiled in grand jury proceedings, a criminal matter. Each contempt citation stems from alleged government leaks. All but one order has been stayed pending appeal. That order was affirmed by an appellate court, and since Aug. 12, the news organization has incurred $11,000 in fines, which will continue to accrue at $1,000 a day. Last Thursday, another three reporters received letters from the U S. Attorney's Office asking for records obtained from confidential sources.

Confidentiality plays a vital role in the news-gathering process. Nowhere is this function more important than in Washington, D.C., the center stage of recent assaults on the First Amendment.

The Matthew Cooper controversy arose from a series of stories triggered by a contentious opinion article written by former ambassador Joseph Wilson, who suggested President Bush twisted intelligence to justify an attack against Iraq.

The seminal article critical of Wilson's op-ed appeared in several newspapers including the Washington Post. On July 14, 2003, syndicated columnist Robert Novak cited senior administration officials who revealed that Wilson's wife, Valerie Plame, is an agency operative on weapons of mass destruction.

A number of reporters viewed this bombshell as a politically motivated retaliation against Wilson's criticism of President Bush.

Within days of Novak's story, Time magazine reported that some government officials exposed Plame's covert status.

In a story that appeared a couple of months after Cooper's, the Washington Post cited two top White House officials who named Wilson's wife as an undercover agent to at least six Washington journalists.

By the end of the year, a federal grand jury was impaneled to investigate the source of the leaks. The knowing disclosure of a covert operative's identity can be a felony if committed by a government official.

What is still unclear is whether Plame was in fact a covert agent, and if so, whether the alleged exposure was illegal. The controlling statute is The Intelligence Identities Protection Act. In order to criminalize the disclosure, the government must prove these elements: (1) that the person's access to classified information was authorized; (2) that a covert agent is identified; (3) that the disclosure was intentional; (4) that the recipient of the information was not authorized to receive classified information; (5) that the person knows that the disclosed information identifies a covert agent; and (6) that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States.

None of these questions appears to have been answered. Yet the question underlying the recent spate of subpoenas — whether forcing a journalist to name a source will provide an answer to any of these essential unknowns — seems to have a reasonable answer: probably not.

Historically, prosecutors are discouraged from coercing information from the news media. In federal cases, however, reporters are especially vulnerable, since there is no shield law in place like those that can protect journalists in more than half the states.

Federal prosecutors are asked to follow Justice Department guidelines, which prescribe a balancing of the public's interest in effective law enforcement against the right to be informed without government interference. To preserve the integrity of the news-gathering process, prosecutors should first attempt to obtain the information from nonmedia sources. The guidelines, however well-articulated, are only guidelines, and do not confer any special privilege to reporters.

The courts offer little more relief, especially in the context of a grand jury. In Branzburg v. Hayes, the last Supreme Court case to visit the issue, the majority opinion held that unless a grand jury is conducted in bad faith or intended to harass, journalists must testify like any other citizen.

But the 5-4 majority was carried by a justice whose concurrence — acknowledging a qualified privilege — seemed to weaken the majority, leading one of the four dissenters to call Branzburg the case that rejected a reporters privilege by a vote of 4 1/2 to 4 1/2.

The concurring opinion holds that a journalist may be protected from testifying, even before a grand jury, if doing so might threaten confidential sources without a legitimate need of law enforcement. A limited privilege was advocated to ensure that prosecutors are not free to annex the news media as an investigative arm of the government.

Because the majority opinion is a majority only to the extent the swing justice concurs, attorneys arguing claims of qualified privilege often cite Branzburg's dissenting opinion, which recommends a three-part test to determine whether the information sought is relevant, material and unobtainable from nonmedia sources.

In the application of Branzburg to Cooper's claim, U.S. District Judge Thomas F. Hogan maintains that the facts of Matthew Cooper's case fall within the core of the Branzburg majority opinion. The investigation is legitimate and the information sought is relevant.

Assuming Plame was a covert agent, and that her identity was illegally leaked — neither of which appears to have been established — is the information unobtainable from other sources?

When the media received subpoenas, the grand jury had nearly a year remaining to complete its investigation. Calling journalists to testify within the first third of the grand jury's term does not leave the impression that reporters were subpoenaed as a last resort. Should we take the court's word that at that relatively early stage all available alternative means of obtaining the information had been exhausted?

Thus far, only the journalists appear to have been exhausted.

Perhaps a clash between constitutional interests prompted the subpoenas to the media in the Plame leak investigation. If the government's targets have testified truthfully, it could be that one or more invoked a Fifth Amendment privilege against answering a question. Maybe Judge Hogan has ruled that his or her right against self-incrimination should trump a journalist's right to refuse based on First Amendment grounds.

Prosecutors routinely employ other methods of discovery to circumvent constitutional safeguards. The government should use the full force of its investigative arsenal before ordering journalists to serve as agents of discovery.

Even before the war on terror cast its shadow on civil liberties, the Justice Department did not appear to hesitate when it secretly subpoenaed an Associated Press reporter John Solomon's phone records. Then as now, the U. S. attorney's office needed to identify official sources suspected of illegal leaks.

Has the special prosecutor subpoenaed phone records of government officials and checked for numbers belonging to journalists who might have been called on telling dates? The articles by Novak and Cooper appeared last year during the same week in July, and at least Cooper received his information from official sources who called.

The government cannot always tip its hand, as a society interested in curbing crime understands. But in cases where fighting crime collides with preserving constitutional rights, it is not unreasonable to question whether prosecutors have exhausted all means to obtain what they claim is essential information.

This I know first-hand. In 2001, a federal judge found me in contempt for protecting confidential sources interviewed for a book I was writing. A number of the sources named in the subpoena were government officials involved in the investigation. Prosecutors insisted that unless I complied, the grand jury would not be able to indict Robert Angleton, a murder-for-hire suspect. The government raised the stakes by representing its intent to seek the death penalty against Angleton.

As Judge Hogan has ordered with Cooper, I was confined until I named my sources or the grand jury expired.

To keep promises of confidentiality and to preserve a limited privilege by requiring the government to balance the publics interests, I did not comply. When the grand jury disbanded almost six months later, the court was forced to release me.

Prosecutors convened a separate grand jury, but did not subpoena me to testify.

Within a month, Angleton was indicted and the U.S. attorney's office decided not to seek the death penalty after all.

Despite representations to the court that there was no other way, prosecutors were able to obtain the necessary evidence after a journalist's refusal to be used as an agent of discovery forced them to do their own work. No reporter should have to languish in jail while prosecutors take another tack.

Before prosecutors come knocking at the media's door, the government should have to show that all other avenues have been pursued, and not just to a federal judge for his in camera review.

While grand jury proceedings are secret, judges can release portions of the record to the public. In fact, in the proceedings involving Cooper, Judge Hogan recently unsealed his opinion and documents filed by both sides as well as a transcript of the hearing that led to the contempt order, which has also been released.

However, in the opinion issued last July but made public August 9, Judge Hogan simply asserts that the prosecutor demonstrated to the court's satisfaction that the information is unobtainable from other means.

Because the source documentation, a sworn statement, was selectively withheld, journalists and other interested parties cannot be as satisfied. Judge Hogan should unseal the special prosecutor's affidavit as well.

Allowing the government to subpoena journalists kills the messenger and, in the process, weakens an essential support of a functioning democracy. Journalists cannot be expected to serve as watchdogs of government if the government is allowed to leash the press through the power of subpoena.

Forcing journalists to name their sources will not restore Plame's covert status. Any victory the government could hope for would be Pyrrhic at best. If the prosecution succeeds in identifying the source of the leaks, the offender could be punished. The corollary, of course, is that Washington insiders will be warned: If you compromise government secrecy, we will find you and you will be prosecuted.

The most insidious consequence has been obscured by an overzealous prosecution, which, in its pursuit of journalists, has diverted the public's attention from the real issue. What is certain to occur if Cooper or any other journalist is forced to break promises of confidentiality should have every American's attention: Those sources best positioned to expose government corruption will keep their mouths shut.

Prior restraint, as Judge Hogan correctly noted, is not in jeopardy here. Unless the government backs off these journalists, however, the problem we face will be one of future restraint. Vows of confidentiality broken now will chill insiders' willingness to speak with investigative reporters. Fear and intimidation via government inquisition will freeze the free flow of information to the public.

This does not mean we will no longer have access to news.

But the most readily accessible information will be government-sanctioned newspeak, free of static from independent voices.

Houston-based free-lance writer Vanessa Leggett spent 168 days in jail for refusing to reveal confidential sources. Her book, "The Murder of the Bookie's Wife," is due out in 2005 from Crown Publishing, a division of Random House.

This column first appeared in the Houston Chronicle, August 22, 2004. Copyright 2004 Houston Chronicle News Services.

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