CIA leak is threat to press freedom

US court case could erode the right of journalists to protect their sources, says Edward Helmore

Some of the legal knots resulting from the march to war in Iraq are taking time to tease out. In the US, none may have greater long-term significance for the press than the fight between federal prosecutors and jounalists from the New York Times and Time that's now making it's way through the appeals courts.

At a minimum, the two journalists at the centre of the case, The New York Times' Judith Miller and Time's White House correspondent Matthew Cooper, face 18-month sentences for refusing to reveal their sources to investigators looking into the politically-motivated leaking of an undercover CIA officer's name to the media. In the extreme, the case may come to redefine the level of legal protection afforded US journalists who maintain the confidentiality of sources who are under government investigation.

The background to the case is well-known. In early 2001, the CIA sent a former US ambassador, Joseph Wilson, to Niger to investigate claims it had exported uranium to Iraq. When Wilson later published a report alleging that President Bush had exaggerated the evidence to justify his invasion of Iraq, his wife, Valerie Plame, was exposed as a CIA operative. The leak came from within the Bush administration, in what is widely seen as retribution for Wilson's criticism.

For two years, prosecutors have sought to establish who leaked Plame's identity to right-wing columnist Bob Novak (the finger of blame seems to point to someone in Vice-President Dick Cheney's office). No charges have been brought over the leak itself; only against Miller and Cooper for refusing to cooperate with a jury convened to hear prosecutors' evidence before bringing any charges.

Two weeks ago, the two journalists lost a judgement before a three-judge appeals court, which said that they were not protected from being compelled to give evidence about their sources. But last week, a federal judge ruled that prosecutors could not sequester their phone records in an attempt to find the leak. The toing and froing of rulings reflects the confusion as to whom and what is protected under the First Amendment.

Since 1961, 25 US journalists have been jailed for withholding information. Most recently, freelance writer Vanessa Leggett served 5 1/2 months in 2001 after refusing to reveal the source of information she used in a book about a Texas man acquitted of hiring someone to kill his wife.

But this may not be the best case to test a grey area of a law that largely favours the right of journalists to protect their sources over prosecutors investigating crimes. The guidelines instruct prosecutors not to pursue reporters, except in the most pressing circumstances. "The danger is that this case may do more damage to the privilege of the press than if they left it alone," says Douglas McCollum of the Columbia Journalism Review.

Under a complex law designed and passed to stop the activities of a renegade ex-CIA agent named Philip Agee in the eary 1980s it's not clear even whether a crime was committed when Plame was publicly outed by Novak. "It could be Miller and Cooper end up going to jail but nobody else does," McCollum says.

The case is full of ironies. Judith Miller, who was prominent among the journalists who were given - and who published - misleading pre-war information about Saddam Hussein's WMD program by Ahmed Chalabi, did not publish her story, which was based on conversations with a "specified government official" who was looking to expose Plame.

Arthur Sulzberger Jr, publisher of The New York Times, says: "If Judy is sent to jail for not revealing her confidential sources for an article that was never published, it would create a dangerous precedent that would erode the freedom of the press."

The uncertainties of the case are compounded by the intentions of Patrick Fitzgerald, the special prosecutor assigned to the case. When it began, the then Attorney General John Ashcroft was pressured to remove himself from any role in the investigation, which he did. His successor, Alberto Gonzalez citing similar ties to the White House, did the same. But the desired effect - an aggressive prosecution of leakers within the Bush administration - has yet to transpire. So far it has been about the pursuit of reporters and their sources. It may yet turn out to be a case both sides, the press and the government, wish they hadn't fought.

Still, as Norman Pearlstine, editor-in-chief of Time Inc., said last week: "In the United States no journalist should have to go to jail simply for doing his or her job."

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooksA special investigation by Andy McSmith
footballFollow the latest news from tonight's friendly
Arts and Entertainment
arts + ents
Arts and Entertainment
All the people: Graham Coxon, Damon Albarn, Alex James and Dave Rowntree
musicThe Magic Whip, album review
Presenter Jack Nicholson and George Clooney pose in the press room after 'Argo' won the trophy for Best Picture during the 85th Annual Academy Awards on February 24, 2013 in Hollywood.
The two faces revealed by the ultraviolet light
Scholars left shaken after ultraviolet light reveals faces staring at them from medieval manuscripts
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs Media

Ashdown Group: Web Developer - London - £40K plus benefits - Salary negotiable

£38000 - £40000 per annum + Excellent benefits: Ashdown Group: A leading consu...

Sheridan Maine: Accounts Assistant

£12 - £15 Hourly Rate: Sheridan Maine: Are you an experienced Accounts Assista...

Sheridan Maine: Accounts Payable Clerk

£21,000 - £24,000 Annual: Sheridan Maine: Are you looking for a new opportunit...

Sheridan Maine: Finance Manager

£55,000 - £65,000 Annual: Sheridan Maine: Are you a qualified accountant with ...

Day In a Page

Machine Gun America: The amusement park where teenagers go to shoot a huge range of automatic weapons

Machine Gun America

The amusement park where teenagers go to shoot a huge range of automatic weapons
The ethics of pet food: Why are we are so selective in how we show animals our love?

The ethics of pet food

Why are we are so selective in how we show animals our love?
11 best bedside tables

11 best bedside tables

It could be the first thing you see in the morning, so make it work for you. We find night stands, tables and cabinets to wake up to
No postcode? No vote

Floating voters

How living on a houseboat meant I didn't officially 'exist'
Louis Theroux's affable Englishman routine begins to wear thin

By Reason of Insanity

Louis Theroux's affable Englishman routine begins to wear thin
Power dressing is back – but no shoulderpads!

Power dressing is back

But banish all thoughts of Eighties shoulderpads
Spanish stone-age cave paintings 'under threat' after being re-opened to the public

Spanish stone-age cave paintings in Altamira 'under threat'

Caves were re-opened to the public
'I was the bookies’ favourite to be first to leave the Cabinet'

Vince Cable interview

'I was the bookies’ favourite to be first to leave the Cabinet'
Election 2015: How many of the Government's coalition agreement promises have been kept?

Promises, promises

But how many coalition agreement pledges have been kept?
The Gaza fisherman who built his own reef - and was shot dead there by an Israeli gunboat

The death of a Gaza fisherman

He built his own reef, and was fatally shot there by an Israeli gunboat
Saudi Arabia's airstrikes in Yemen are fuelling the Gulf's fire

Saudi airstrikes are fuelling the Gulf's fire

Arab intervention in Yemen risks entrenching Sunni-Shia divide and handing a victory to Isis, says Patrick Cockburn
Zayn Malik's departure from One Direction shows the perils of fame in the age of social media

The only direction Zayn could go

We wince at the anguish of One Direction's fans, but Malik's departure shows the perils of fame in the age of social media
Young Magician of the Year 2015: Meet the schoolgirl from Newcastle who has her heart set on being the competition's first female winner

Spells like teen spirit

A 16-year-old from Newcastle has set her heart on being the first female to win Young Magician of the Year. Jonathan Owen meets her
Jonathan Anderson: If fashion is a cycle, this young man knows just how to ride it

If fashion is a cycle, this young man knows just how to ride it

British designer Jonathan Anderson is putting his stamp on venerable house Loewe
Number plates scheme could provide a licence to offend in the land of the free

Licence to offend in the land of the free

Cash-strapped states have hit on a way of making money out of drivers that may be in collision with the First Amendment, says Rupert Cornwell