He graduated from Georgetown University, receiving an A.B. (classical) in 1960. He attended George Washington University’s masters program in American and English literature from 1960 to 1962, and he graduated from the Georgetown University Law Center in 1966, where he was the St. Thomas More Fellow. Following law school, Judge Hogan clerked for Judge William B. Jones of the U. S. District Court for the District of Columbia from 1966 to 1967.
He served as counsel to the National Commission for the Reform of Federal Criminal Laws from 1967 to 1968, and was engaged in private practice from 1968 to 1982. He has been an adjunct professor of law at the Georgetown University Law Center and a Master of the Prettyman-Leventhal Inn of Court. He is a member of the Executive Committee of the U.S. Judicial Conference, Chair of the Courtroom Technology Subcommittee, and served on the Board of the Federal Judicial Center.
In the news
- Recently, Chief Judge Thomas Hogan ordered Judith Miller of the New York Times after she refused to disclose her confidential source to a grand jury. Matthew Cooper of Time Magazine avoided jail time after he agreed to reveal his source.
Timeline in Judith
Miller Contempt Case
Saturday, Oct. 1, 2005
A timeline in the case of Judith Miller, a New York Times reporter jailed for 85 days after refusing to divulge her sources to a prosecutor investigating the Bush administration's role in leaking a CIA officer's identity:
February 2002: Former Ambassador Joseph Wilson is asked by the Bush administration to travel to Niger to check out an intelligence report that Niger sold yellowcake uranium to Iraq in the late 1990s for use in nuclear weapons.
Jan. 28, 2003: In the State of the Union address,
President Bush states that "The British government has
learned that Saddam Hussein recently sought significant
quantities of uranium from Africa" but does not mention
that U.S. agencies had questioned the validity of the
July 6: In a New York Times op-ed piece, Wilson
writes that he could not verify that Niger sold uranium
yellowcake to Iraq.
July 14: Columnist Robert Novak identifies Wilson's wife, Valerie Plame, as "a (CIA) operative on weapons of mass destruction." Novak cites "two senior administration officials" as his sources.
July 17: Matthew Cooper writes on Time.com that
government officials have told him Wilson's wife is a
CIA official monitoring WMD. Another article appears in
the magazine's July 21 print issue.
Sept 29-30: The Justice Department informs then-White House counsel Alberto R. Gonzales that it has opened an investigation into possible unauthorized disclosures concerning the identity of an undercover CIA employee. Gonzales informs the president the next day. Bush tells reporters: "I don't know of anybody in my administration who leaked classified information. If somebody did leak classified information, I'd like to know it, and we'll take the appropriate action."
Dec. 30: Chicago U.S. attorney Patrick J. Fitzgerald is named special counsel to investigate whether a crime was committed.
May 21, 2004: A grand jury subpoenas Cooper and Time Inc., seeking testimony and documents. Time says it will fight subpoena.
Aug 9: U.S. District Judge Thomas F. Hogan's rejects claims that the First Amendment protects Cooper from testifying and finds them in contempt of court. Time magazine appeals the ruling.
Aug 12 and 14: The grand jury subpoenas New York Times reporter Judith Miller, who gathered material for a story but never wrote one. The New York Times says it will fight subpoena.
Aug 24: Cooper agrees to give a deposition after Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, personally releases Cooper from a promise of confidentiality.
Sept 13: According to court documents, the grand jury issues a further subpoena to Cooper seeking additional information relating to the case. Cooper and Time move to quash the subpoena.
Oct 7: Miller held in contempt.
Oct. 13: Cooper and Time held in contempt.
Feb. 15, 2005: Appeals court rules against Miller and Cooper. Both Time magazine and The New York Times appeal to the Supreme Court.
June 27: The Supreme Court refuses to intervene.
July 1: Time magazine agrees to comply with a court order to turn over Cooper's notes, e-mail and other documents. Cooper and Miller continue to refuse to divulge sources.
July 6: U.S. District Judge Thomas Hogan sends Miller to jail for refusing to divulge her source. Cooper agrees to name his source after receiving permission from the source to do so.
Sept. 29: After 85 days behind bars, Miller is released from the city jail in Alexandria, Va., after agreeing to testify before a grand jury. She says in a statement that her source has "voluntarily and personally released me from my promise of confidentiality."
Sept. 30: Miller testifies at the federal courthouse in downtown Washington, ending her silence in the investigation.
New York Times reporter Judith Miller spent nearly three months in jail for refusing to reveal a source.
From Kelly Wallace
Thursday, September 29, 2005; Posted: 11:06 p.m. EDT (03:06 GMT)
(CNN) -- A New York Times reporter was released from jail Thursday after agreeing to provide evidence to a federal grand jury investigating the leak of a CIA operative's name.
Judith Miller will appear before the grand jury Friday after spending 12 weeks behind bars protecting a confidential source, whom she said has cleared her to testify.
Miller said her attorneys reached an agreement with prosecutors on the scope of her testimony that "satisfied my obligation as a reporter to keep faith with my sources."
"It's good to be free," Miller said in a statement. "I am leaving jail today because my source has now voluntarily and personally released me from my promise of confidentiality regarding our conversations."
She did not identify the source.
New York Times publisher Arthur Sulzberger Jr. said the newspaper supported Miller's decision.
"We are very pleased that she has finally received a direct and uncoerced waiver, by phone and in writing, releasing her from any claim of confidentiality and enabling her to testify," he said in a statement.
Miller was released from a federal facility in Alexandria, Virginia, at about 4 p.m. after a contempt order against her was lifted by a federal judge, a source with detailed knowledge of her case told CNN.
The chain of events that led to the contempt charges against Miller began in July 2003, when syndicated columnist Robert Novak, who is also a CNN contributor, identified Valerie Plame as a CIA operative in his column. He cited unidentified senior administration sources for the information.
Plame's husband is Joseph Wilson, a former U.S. ambassador to Iraq. Wilson charged that his wife's name was leaked to retaliate against him after he disputed Bush administration statements that Iraqi dictator Saddam Hussein had tried to purchase uranium in Africa.
That assertion was used as part of the administration's case for justifying the invasion of Iraq in March 2003.
Because federal law makes it a crime in some cases to deliberately reveal the identity of a CIA operative, the Justice Department launched an investigation, headed by special prosecutor Patrick Fitzgerald, the U.S. attorney in Chicago, Illinois.
As part of his probe, Fitzgerald subpoenaed a number of journalists to testify about their sources, including Miller.
Despite the fact that she never actually wrote a story on Plame or Wilson, Miller refused to testify about sources she developed during her research. She was jailed for contempt in July.
She could have been held until October, when the grand jury's term will expire.
New York Times Executive Editor Bill Keller said that until recently, Miller had received "only a generic waiver" of her confidentiality promise, "and she believed she had ample reason to doubt it had been freely given."
"In recent days, several important things have changed that convinced Judy that she was released from her obligation," Keller said in a statement. He did not provide details of what those changes were.
Miller said in her statement that she would not comment further until after she testifies.
Time reporter Matthew Cooper testified in July after the magazine provided investigators with his notes.
Cooper told reporters that Bush's chief political adviser, Karl Rove, told him Wilson's wife worked for the CIA but did not say her name.
Cooper also said that Lewis "Scooter" Libby, chief of staff for Vice President Dick Cheney, confirmed that piece of information.
President Bush told reporters in July that "If someone committed a crime, they will no longer work in my administration."
When asked in June 2004 whether he stood by his promise to fire whoever was found to have leaked Plame's name, Bush replied, "Yes."
Fitzgerald last year also questioned NBC Washington bureau chief Tim Russert, who has said he was not the recipient of a leak concerning Plame's identity. http://www.cnn.com/2005/POLITICS/09/29/cia.leak/
United States Senate Committee on the Judiciary
Reporters' Shield Legislation: Issues and Implications
July 20, 2005
Editor-in-Chief , Time Inc.
Before the Judiciary Committee
United States Senate
July 20, 2005
Mr. Chairman and Members of the Committee: Thank you for the opportunity to appear before you today. My name is Norman Pearlstine. Since January 1995, I have served as editor-in-chief of Time Inc., which is the largest
publisher of general interest magazines in the world. We publish over 140 titles in the United States and abroad, including TIME, Fortune, and Sports Illustrated. I
am honored to have this opportunity to testify in support of the proposed federal legislation that would protect journalists from being compelled to testify about
confidential sources and other unpublished information obtained during newsgathering.
This type of protection, which has been adopted in one form or another by 49 States and the District of Columbia, is commonly called a “reporter’s privilege,” but this is something of a misnomer. The laws are really intended to
protect the public, not reporters, by ensuring the free flow of information about governmental activities and other matters of public concern and interest. I believe
there is an urgent need for such protection at the federal level.
Although I have spent the last 37 years working as a journalist in the United
States, Asia and Europe, I received a law degree and am an inactive member of the
District of Columbia Bar Association, having passed its bar examination. Among
other things, prior to joining Time Inc., I worked for The Wall Street Journal from
1968 to 1992, except for a two-year period, 1978-1980, when I was an executive
editor of Forbes magazine. While at the Journal, I served as a staff reporter in
Dallas, Detroit and Los Angeles (1968-1973); Tokyo bureau chief (1973-1976);
managing editor of The Asian Wall Street Journal (1976-1978); national editor
(1980-1981); editor and publisher of The Wall Street Journal/Europe (1982-1983);
managing editor (1983-1991); and executive editor (1991-1992). (My bio is
attached as Exhibit A.)
Until today, I had never testified in a Senate hearing or, for that matter, in
any other legislative proceeding. As a journalist, I am far more comfortable
reporting, writing, or editing news about the government than urging the
government to adopt new laws. But the absence of federal legislation protecting
sources has created extraordinary chaos, limiting the public’s access to important
information that is so necessary in a democratic society. The Supreme Court’s
sharply divided decision 33 years ago in Branzburg v. Hayes, 408 U.S. 665
(1972), has mystified courts, lawyers and journalists alike. As a result, the federal
courts are in a state of utter disarray about whether a reporter’s privilege
protecting confidential sources exists. The conflicting legal standards throughout
the federal courts defeat the nearly unanimous policies of the States in this area.
This uncertainty chills essential newsgathering and reporting. It also leads to
confusion by sources and reporters, and the threat of jail and other harsh penalties
for reporters who do not know what promises they can make to their sources.
I recently witnessed the problems first hand. As the Committee is no doubt
aware, for almost two years, Time Inc. and its reporter Matthew Cooper fought
against compelled disclosure of confidential sources in response to grand jury
subpoenas in Special Counsel Patrick Fitzgerald’s investigation of the Valerie
Plame affair. The federal district judge presiding over the matter called this battle
a “perfect storm” in which important First Amendment rights clashed with the
important interest in law enforcement. We fought all the way to the Supreme
Court and lost.
My decision to turn over confidential documents to the Special Counsel
after we had pursued every possible legal remedy was the toughest decision of my
career — and one I should never have had to make. The experience has only
deepened my commitment to ensure protection for confidential sources and made
clear to me the urgent need for federal legislation.
I shall begin my testimony by providing a brief summary of the Plame
matter. I shall then discuss why the careful use of confidential sources is
indispensable to ensuring that the press can fulfill its constitutionally established
duty of providing vital information to the public so that people can make informed
decisions about the government and thereby fully participate in democracy.
Finally, I shall explain why I so strongly believe that federal legislation is
necessary — and long overdue.
THE VALERIE PLAME CASE
In the summer of 2003, a public controversy arose over the justification for
the invasion of Iraq, including whether Iraq possessed, or had been seeking to
develop, weapons of mass destruction. In the midst of that controversy, on July 6,
2003, the New York Times published an op-ed piece by former Ambassador Joseph
Wilson challenging the Bush Administration’s justifications for the invasion.
Wilson asserted that the CIA had dispatched him to Niger in February 2002 to
investigate whether Iraq had attempted to purchase uranium from Niger as part of
its effort to develop nuclear weapons. He stated that he had found no credible
evidence of such efforts, and had reported that conclusion to the CIA. See Joseph
C. Wilson, What I Didn’t Find in Africa, N.Y. TIMES, July 6, 2003, § 4, at 9.
On July 14, 2003, the Chicago Sun-Times published a column by Robert
Novak reporting that “two senior administration officials” had told him that the
CIA had selected Wilson for the Niger mission at the suggestion of Wilson’s wife,
Valerie Plame, described by Novak as “an agency operative on weapons of mass
destruction.” Robert Novak, The Mission to Niger, CHI. SUN-TIMES, July 14,
2003, at 31.
Three days later, we published an article on TIME.com, TIME’s website, coauthored
by reporter Matthew Cooper, stating that “some government officials
have noted to TIME in interviews . . . that Wilson’s wife, Valerie Plame, is a CIA
official who monitors the proliferation of weapons of mass destruction.” Matthew
Cooper et al., A War on Wilson?, TIME.com (July 17, 2003), available at
www.time.com/time/nation/article/0,8599,465270,00.html. The article, based in
part on confidential sources, suggested potential misconduct by government
officials in that the leak may have been made to retaliate against and discredit
Wilson for his op-ed in the Times. Cooper later contributed reporting to a second
article, also based in part on confidential sources, which reported on the
Iraq/uranium controversy but did not mention Plame. Michael Duffy et al., A
Question of Trust, TIME, July 21, 2003, at 22.
After some uproar, the Department of Justice appointed Special Counsel
Fitzgerald to determine whether those who leaked Plame’s identity as a CIA
operative violated the Intelligence Identities Protection Act, a federal law barring
the knowing and unauthorized disclosure of a covert operative’s identity. The
Special Counsel impaneled a federal grand jury and subpoenaed Cooper and Time
Inc., demanding that we disclose our sources. We declined to do so because we
believed that a reporter’s privilege, based on the First Amendment and federal
common law, protected this information from compelled disclosure. Chief Judge
Thomas F. Hogan, who presides over the grand jury, rejected our claims, finding
that no such privilege exists under federal law and that the Supreme Court’s 1972
Branzburg decision foreclosed recognition of any such protection. He held
Cooper and us in contempt, relying on secret evidence submitted by the
prosecutor. The judge ordered that Cooper be jailed for up to 18 months and that
Time Inc. be fined $1,000 a day until we complied with the subpoenas and
revealed our confidential sources.
The Special Counsel was simultaneously seeking to force disclosure of
confidential source information from New York Times reporter Judith Miller. As
with Cooper and Time Inc., the district court rejected Miller’s reporter’s privilege
claims, held Miller in contempt and ordered her to be jailed when she refused to
comply with subpoenas.
The D.C. Circuit Court of Appeals affirmed the district court’s contempt
orders. (A copy of the Court of Appeals’ opinion is attached as Exhibit B.) The
court interpreted Branzburg as an absolute bar to any First Amendment protection
for confidential sources, and held that because “[t]he Supreme Court has not
overruled Branzburg,” it “has already decided the First Amendment issue before
us today.” 397 F.3d 964, 972 (D.C. Cir. 2005). The court could not reach a
similar consensus on whether a reporter’s privilege existed as a matter of federal
common law and Rule 501 of the Federal Rules of Evidence, splintering three
ways in separate concurrences totaling 60 pages. Relying largely on Branzburg,
Judge Sentelle concluded that no privilege existed; Judge Tatel would have
recognized a qualified privilege; and Judge Henderson, while disagreeing with
Judge Sentelle’s interpretation of Branzburg, declined to resolve the question.
Judge Sentelle added that, in his view, “[t]he creation of a reporter’s privilege, if it
is to be done at all, looks more like a legislative than an adjudicative decision. I
suggest that the media as a whole, or at least those elements of the media
concerned about this privilege, would better address those concerns to the Article I
legislative branch for presentment to the Article II executive than to the Article III
courts.” Id. at 981 (Sentelle, J., concurring).
In rejecting our claims, the court also relied on eight pages of Judge Tatel’s
opinion analyzing the Special Counsel’s secret evidentiary submission. But the
court redacted the entirety of this discussion and so those pages are blank. The
court rejected our argument that basic due process afforded us a right to see this
evidence and thus denied us any insight into the Special Counsel’s reasons for
seeking to force Cooper and Miller to testify. Our petition for rehearing by the full
D.C. Circuit was denied.
We then filed a petition for writ of certiorari, arguing that these issues cried
out for resolution by the Supreme Court. (A copy of our petition is attached as
Exhibit C.) The chief law enforcement officers for 34 States and the District of
Columbia filed a friend-of-the-court brief urging the Court to grant review.
Emphasizing that 49 States and the District have now adopted reporter’s “shield
laws,” they declared that the lack of a comparable federal protection — and
“[u]ncertainty and confusion” regarding the existence of such protection —
“undermines both the purpose of the shield laws, and the policy determinations of
the State courts and legislatures that adopted them.” States’ Br. 2-3. (A copy of
the States’ brief is attached as Exhibit D.) On June 27, 2005, the Court denied
On June 29, our lawyer appeared before Chief Judge Hogan and asked for
the chance to submit additional briefs on the contempt and reporter’s privilege
issues based on changed circumstances and the D.C. Circuit opinions, but the
judge indicated he would be unwilling to entertain further arguments and that
contempt fines (which had been stayed pending appeal) would be assessed and
increased unless Time Inc. complied within one week. The Special Counsel and
the judge hinted that failure to comply might result in criminal, not just civil,
contempt sanctions being imposed against Time Inc., Cooper and Miller.
We found ourselves in an exceedingly difficult situation. The Supreme
Court had declined to hear our petition despite the fact that important questions
about confidential sources, national security, the role of a grand jury, and due
process were at issue. But after pursuing every possible judicial remedy without
success and in light of the specific set of circumstances we faced in this case, I
decided on behalf of Time Inc. that, in accordance with our duties under the law,
we should turn over the subpoenaed documents to the Special Counsel. We
announced our decision the next day and turned over the documents on July 1.
On July 6, our lawyer again appeared before Chief Judge Hogan and argued
that, in light of our production of the documents, the Special Counsel should be
required to make a new showing of need before jailing Matt Cooper for refusing to
testify about his confidential sources. The judge denied that motion. Mr. Cooper
then announced that, just prior to the hearing, he had obtained an express waiver
of confidentiality from his source and that he was therefore now prepared to testify
before the grand jury, which he did on July 13. The judge ordered that Ms. Miller,
who refused to testify, be immediately taken into confinement and imprisoned
until she agreed to testify; she remains in prison to this day.
THE IMPORTANCE OF PROTECTING CONFIDENTIAL
It is Time Inc.’s editorial policy that articles in our publications should
identify sources by name whenever possible. But sometimes we can obtain
information only by promising confidentiality to a source, because many persons
with important information won’t speak to the press unless they are assured
anonymity. Information given in confidence is especially valuable when it
contradicts or undermines public positions asserted by governments or powerful
individuals or corporations. Without confidential sourcing, the public would never
have learned the details of many situations vital to its interests, from Watergate to
the controversies that led to the impeachment (and then acquittal) of President
Clinton to the Enron and Abu Ghraib scandals.
Time Inc. has a long history of fighting to preserve press freedoms because
we believe it is in the public interest to do so. It is no coincidence that the
Supreme Court held in a case involving our company that freedom of the press
was created “not for the benefit of the press so much as for the benefit of all of
us.” Time Inc. v. Hill, 385 U.S. 374, 389 (1967). We know that when gathering
and reporting news, journalists act as surrogates for the public. Protecting
confidential sources is thus intended not to protect the rights of news
organizations, individual reporters or sources, but to safeguard the public’s rights.
Ronald Dworkin, The Rights of Myron Farber, N.Y. REV. BOOKS, Oct. 26, 1978,
at 34 (“The special position of the press is justified, not because reporters have
special rights but because it is thought that the community as a whole will benefit
from their special treatment, just as wheat farmers might be given a subsidy, not
because they are entitled to it, but because the community will benefit from that.”).
Our “Constitution specifically selected the press” to fulfill an “important role” in
our democracy. Mills v. Alabama, 384 U.S. 214, 219 (1966). The press “serves
and was designed to serve as a powerful antidote to any abuses of power by
governmental officials as a constitutionally chosen means for keeping officials
elected by the people responsible to all the people whom they were elected to
serve.” Id. The press “has been a mighty catalyst in awakening public interest in
governmental affairs, exposing corruption among public officers and employees
and generally informing the citizenry of public events and occurrences.” Estes v.
Texas, 381 U.S. 532, 539 (1965).
“[N]ews gathering is essential to a free press” and
“[t]he press was protected so that it could bare the
secrets of government and inform the people.”
Without an unfettered press, citizens would be far less
able to make informed political, social, and economic
choices. But the press’ function as a vital source of
information is weakened whenever the ability of
journalists to gather news is impaired.
Zerilli v. Smith, 656 F.2d 705, 710-11 (D.C. Cir. 1981) (quoting New York Times
Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J., concurring)).
Some reliance on confidential sources is necessary to protect the press’s
ability to fulfill its constitutionally ordained role. Over the years TIME and our
other magazines have published many stories regarding issues of significant public
interest that could not have been published unless we could rely on confidential
sources. To cite a few examples from the weeks prior to the Supreme Court’s
denial of our petition for certiorari, I worked with colleagues at TIME on important
stories about a suicide bomber in Iraq, the treatment and interrogation of a
detainee at Guantanamo, and the vulnerability of our nation’s commercial nuclear
facilities should they be subjected to terrorist attack. None of these stories could
have been published without the use of information from confidential sources.
As one court explained it:
The interrelationship between newsgathering, news
dissemination and the need for a journalist to protect
his or her source is too apparent to require belaboring.
A journalist’s inability to protect the confidentiality of
sources s/he must use will jeopardize the journalist’s
ability to obtain information on a confidential basis.
This in turn will seriously erode the essential role
played by the press in the dissemination of information
and matters of interest and concern to the public.
Riley v. Chester, 612 F.2d 708, 714 (3d Cir. 1979) (citations omitted).
Following my decision to obey the courts by providing the Special Counsel
with the subpoenaed documents, I met last week with TIME’s Washington bureau,
and later that day with many of its New York writers and editors. Many of them
showed me e-mails and letters from valuable sources who insisted that they no
longer trusted the magazine and that they would no longer cooperate on stories.
The chilling effect is obvious. Without confidentiality — that express promise or
implied understanding that a source’s identity won’t be revealed — it will often be
impossible for our reporters to sustain relationships with sources and to obtain
sensitive information from them.
As Professor Alexander Bickel observed in a celebrated essay:
Indispensable information comes in confidence from officeholders
fearful of superiors, from businessmen fearful of competitors, from
informers operating at the edge of the law who are in danger of
reprisal from criminal associates, from people afraid of the law and
of government — sometimes rightly afraid, but as often from an
excess of caution — and from men in all fields anxious not to incur
censure for unorthodox or unpopular views. . . . Forcing reporters to
divulge such confidences would dam the flow to the press, and
through it to the people, of the most valuable sort of information:
not the press release, not the handout, but the firsthand story based
on the candid talk of a primary news source.
Alexander Bickel, The Morality Of Consent, at 84 (1975); see also Zerilli, 656
F.2d at 711; Dworkin, supra, N.Y. REV. BOOKS, Oct. 26, 1978, at 34 (“If
reporters’ confidential sources are protected from disclosure, more people who
fear exposure will talk to them, and the public may benefit. There is a particular
need for confidentiality, for example, and a special public interest in hearing what
informers may say, when the informer is an official reporting on corruption or
official misconduct, or when the information is information about a crime.”);
Theodore B. Olson, Supreme Confusion in the Plame Case, WALL ST. J., June 8,
2005, at A14 (“[W]hen reporting on sensitive subjects, particularly misconduct or
excesses by government officials, journalists often have no choice but to seek
information from individuals who would be at great risk of retaliation or
embarrassment if their identities were disclosed. However imperfect the process
may sometimes be, we have learned that a robust and inquisitive press is a potent
check against abusive governmental power. And the press often cannot perform
that service without being able to promise confidentiality to some sources.”)
(attached as Exhibit E). In short, some degree of confidentiality is essential if the
press is to fulfill its constitutionally assigned role in society.
THE URGENT NEED FOR A FEDERAL SHIELD LAW
The need for a federal shield law has never been clearer. Judith Miller is in
jail and Matthew Cooper would have been had his source not released him at the
last minute from his bond of confidentiality. As we argued in our certiorari
petition, see Exhibit C, at 8-19, the law is a mess — so much so that the three
judges on the D.C. Circuit panel each took a very different view of whether the
federal common law recognizes a reporter’s privilege. Some judges, like Judge
Sentelle, believe that Branzburg bars not only First Amendment protection, but
any form of judicially recognized privilege, and the Supreme Court has refused to
revisit that decision, leaving federal legislation as the sole realistic possibility for a
uniform federal rule. As the Supreme Court in Branzburg recognized, “[a]t the
federal level, Congress has freedom to determine whether a statutory newsman’s
privilege is necessary and desirable and to fashion standards and rules as narrow
or broad as deemed necessary to deal with the evil discerned and, equally
important, to refashion those rules as experience from time to time may dictate.”
408 U.S. at 706.
Federal law recognizes many other evidentiary privileges, including
privileges protecting spousal communications, and communications between
social workers and those seeking counseling from them, doctors and patients,
attorneys and clients, and clergy and penitents. These privileges may lead to the
loss of evidence in some instances, but they are viewed as necessary to protect and
foster communications deemed valuable to society as a whole. The same is true
for communications between reporters and confidential sources.
When courts compel disclosure of confidential sources, it endangers our
ability to do our jobs, and this practice inevitably stems the flow of information on
public events vital to an informed citizenry and a healthy democracy. In this case,
for instance, Cooper’s story A War on Wilson? raised the important question
whether government officials improperly retaliated against a critic of the
Administration’s decision to go to war.
The Plame case is part of a disturbing trend. In the last two years, dozens
of reporters have been subpoenaed to reveal their confidential sources, many of
whom face the prospect of imminent imprisonment. See R. Smolkin, Under Fire,
27 Am. Journalism Rev. 18 (2005). The use of such subpoenas in the Plame case
represents a profound departure from the practice of federal prosecutors when this
case is compared to other landmark cases involving confidentiality over the past
30 years. Neither Archibald Cox, the Watergate Special Prosecutor, nor Judge
John Sirica sought to force The Washington Post or its reporters to reveal the
identity of “Deep Throat,” the prized confidential source. We are deeply
concerned that the rulings in the Plame case will exacerbate the danger of
prosecutorial excesses when it comes to issuing subpoenas in all types of cases.
To be sure, the Department of Justice guidelines limit subpoenas to the
press and require the Attorney General’s approval of such subpoenas. But the
courts in the Plame case held that these regulations are not judicially enforceable.
And where a special (or “independent”) counsel is leading the investigation, the
Attorney General’s approval is no longer required, posing special dangers to the
press. As Judge Tatel noted in the Plame case:
[I]ndependent prosecutors . . . may skew their assessments of the
public interests implicated when a reporter is subpoenaed. After all,
special prosecutors, immune to political control and lacking a docket
of other cases, face pressure to justify their appointments by bagging
their prey. Cf. Morrison v. Olson, 487 U.S. 654, 727-28, 101 L. Ed.
2d 569, 108 S. Ct. 2597 (1988) (Scalia, J., dissenting) (noting “the
vast power and the immense discretion that are placed in the hands
of a prosecutor with respect to the objects of his investigation” and
observing that “the primary check against prosecutorial abuse is a
political one”) . . . . [T]hese considerations — the special counsel’s
political independence, his lack of a docket, and the concomitant risk
of overzealousness — weigh against his claim to deference in
balancing harm against news value.
397 F.3d at 999 (Tatel, J., concurring).
To make matters worse, reporters and their sources are subject to a tangle
of contradictory privilege rules that vary widely depending on the jurisdiction in
which they are subpoenaed. These differing rules lead to arbitrary, unpredictable
and conflicting outcomes. This uncertainty has a chilling effect on speech, and
ultimately results in less information reaching the public, as many individuals will
hesitate to communicate with a reporter if a promise of confidentiality is good in
some jurisdictions but not in others. In particular, a state-law reporter’s privilege
is of little value if it offers no reliable protection from forced disclosure in federal
The 34 States and the District of Columbia said it best in their amicus
curiae brief urging the Supreme Court to grant review in the Plame case. All of
these States and the District have adopted some form of reporter’s shield law and
these laws, “like those of the other fifteen jurisdictions that have them, share a
common purpose: to assure that the public enjoys a free flow of information and
that journalists who gather and report the news to the public can do so in a free
and unfettered atmosphere. The shield laws also rest on the uniform determination
by the States that, in most cases, compelling newsgatherers to disclose confidential
information is contrary to the public interest.” States’ Br. at 2. That the chief law
enforcement officers for these 35 jurisdictions weighed in to endorse their
reporter’s shield laws is powerful evidence that these laws do not interfere with
the government’s ability to prosecute crimes.
At the same time, the States also declared in their brief that a “federal
policy that allows journalists to be imprisoned for engaging in the same conduct
that these State privileges encourage and protect ‘buck[s] that clear policy of
virtually all states,’ and undermines both the purpose of the shield laws, and the
policy determinations of the State courts and legislatures that adopted them.” Id.
at 2-3. And they emphasized that the States “have a vital interest in this issue
independent of protecting the integrity of their shield laws. Uncertainty and
confusion . . . have marked this area of the law in the three decades that have
passed since . . . Branzburg . . . . This increasing conflict has undercut the state
shield laws just as much as the absence of a federal privilege.” Id. at 3.
I strongly believe in the need for confidential sources and that we must
protect our sources when we grant them confidentiality. This is an obligation I
take with the utmost seriousness. I also believe we must resist government
coercion. But defying court orders, accepting imprisonment and fines, shouldn’t
be our only way of protecting sources or resisting coercion. Put simply, the issues
at stake are crucial to our ability to report the news to the public. Without some
federal protection for confidential sources, all of this is in jeopardy. The time has
come for enactment of a shield law that will bring federal law into line with the
laws of the States and ensure the free and open flow of information to the public
on the issues of the day.
Matt Cooper Tim Russert