Time magazine's decision to hand subpoenaed records over to a special prosecutor investigating a White House security leak appeared to be aimed at sparing jail time for its reporter, Matthew Cooper, who was facing up to 120 days behind bars for contempt. But the move ignited a furore at a time when traditional protections afforded to journalists and their sources in the United States are becoming seriously eroded.
Ostensibly, the pressure should be on the Bush administration itself, which deliberately – and illegally – leaked the identity of a CIA field operative, apparently as a form of revenge against her husband, the diplomat Joseph Wilson, who conducted an investigation and wrote a report undermining the administration's case for war against Iraq. Instead, however, the special prosecutor's attempt to pinpoint the identity of the leaker or leakers has focused on two reporters told about the CIA operative in 2002. Both Mr Cooper of Time and Judith Miller of The New York Times have come under relentless pressure to give up the names of their sources, although neither was the first to identify the CIA operative as Mr Wilson's wife, Valerie Plame.
The magazine's decision was immediately criticised by The New York Times, which had hoped the two publications could stand firm together.
Curiously, the journalist who did "out" Ms Plame, the conservative columnist Robert Novak, has come under no pressure from the special prosecutor whatsoever, for reasons that remain to be explained. Mr Novak said at the time that Ms Plame's identity had been disclosed to him by two separate White House sources.
Time explained yesterday that it felt compelled to follow the rule of law in handing over the documents – believed to be company e-mails rather than Mr Cooper's actual notes – no matter how much it disagreed with the courts. The magazine appeared to be reaching for a compromise, whereby the prosecutor would obtain the information he was looking for but Mr Cooper could still say with a clear conscience that he had not personally betrayed his sources.
A lawyer for the magazine said he did not now expect Mr Cooper to have to testify before a grand jury, or to face the threat of jail.
The New York Times's publisher, Arthur Sulzberger Jnr, said he was "deeply disappointed", and noted that the newspaper had stood up to similar pressures in 1978, when its reporter Myron Farber ended up serving 40 days behind bars rather than betray his sources in a criminal trial. "Our focus is now on our own reporter, Judith Miller, and in supporting her during this difficult time," Mr Sulzberger added.
The next hearing has been set for next Wednesday, at which time the prosecutor could insist on Ms Miller's immediate incarceration or decide he has enough information from Time to drop the demand.
Opponents of the Bush administration are astonished at how adeptly the White House has deflected attention from itself. Many conservatives, meanwhile, are appalled at what they see as an assault on the rights of journalists and freedom of speech. William Safire, the veteran conservative commentator, returned to his old slot at The New York Times to demand a full explanation from Mr Novak of how he "managed to get the prosecutor off his back".
Journalism advocacy groups noted with dismay that another court ruling came down this week ordering another four journalists – from the Associated Press, The New York Times, the Los Angeles Times, and CNN – to disclose their sources concerning unfounded espionage accusations hurled at the Los Alamos nuclear scientist Wen Ho Lee six years ago.