Venom and Bile

[BullNBear52]

Hang him out to dry...

June 30, 2005
Time Decides to Hand Over Notes of Reporter Facing Prison
By ADAM LIPTAK
Time magazine said today that it would provide documents concerning the confidential sources of one of its reporters to a grand jury investigating the disclosure of the identity of a covert C.I.A. agent, Valerie Plame.

The United States Supreme Court turned down appeals in the case on Monday, concluding the gravest legal confrontation between the press and the government in a generation. Two reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, face jail for refusing to testify before the grand jury.

In an interview, Norman Pearlstine, Time Inc.'s editor in chief, said he made the decision after much reflection.

"I found myself really coming to the conclusion," he said, "that once the Supreme Court has spoken in a case involving national security and a grand jury, we are not above the law and we have to behave the way ordinary citizens do."

The announcement by a major news organization that it would disclose the identities of its confidential sources in response to a subpoena appears to be without precedent in living memory and suggests a turning point in the relationship between the press and the government. The news media have been under growing pressure and scrutiny over issues of accuracy, credibility and political bias.

The press has traditionally argued that it needs confidential sources to ensure that the public is fully informed. That interest is outweighed, recent court rulings have said, by the needs of the judicial system for evidence.

On Wednesday, Judge Thomas F. Hogan of the Federal District Court in Washington said he would order the reporters jailed for up to 120 days if they do not agree to testify before the grand jury in the meantime. He also said that he would impose substantial fines on the magazine.

The magazine made its decision over the objections of its reporter, Mr. Cooper.

The documents to be turned over to the special prosecutor in the case, Patrick J. Fitzgerald, include Mr. Cooper's notes of interviews and "the ordinary work product that is typical of the interaction that takes place between reporters and editors," Mr. Pearlstine said. He said Time has not yet decided when and how the transfer will happen but said the documents will not be made public by Time.

The move may have consequences for Mr. Cooper.

"My hope," Mr. Pearlstine continued, "is that the special counsel concludes that he does not need Matt's testimony and does not need his incarceration."

It is less clear whether the magazine's decision will affect Ms. Miller, but one of her lawyers, Robert S. Bennett, said it might help her.

"I hope that Time's disclosure will eliminate the need for Judy's testimony and that this crisis can be ended," he said.

Ms. Miller declined to comment Thursday, as did a spokesman for Mr. Fitzgerald.

Arthur Sulzberger Jr., the publisher of The New York Times, was critical of Time.

"We are deeply disappointed by Time Inc.'s decision to deliver the subpoenaed records," he said. "We faced similar pressures in 1978 when both our reporter Myron Farber and The Times Company were held in contempt of court for refusing to provide the names of confidential sources. Mr. Farber served 40 days in jail and we were forced to pay significant fines.

"Our focus is now on our own reporter, Judith Miller, and in supporting her during this difficult time."

Mr. Pearlstine said that "responsible news organizations can have different opinions."

But, he added, "If I were The New York Times in 1978 I would have turned over the information."

Mr. Farber refused to supply his notes to a doctor on trial for killing patients by injecting them with curare. The doctor, Dr. Mario Jascalevich, was acquitted.

Mr. Farber, now retired, recalled the efforts he and the paper had made to protect his notes.

"The Times, at my request, I think it was, relinquished control of the notes to me," he said. "I took responsibility for protecting them, and I did protect them. I divied them up and hid them all over the region in a variety of places."

Zachary W. Carter, a former United States attorney in Brooklyn, said that media companies and their reporters have different obligations.

"I don't believe that a company has the right to put the assets of it shareholders at risk in an act of civil disobedience," he said. "On the other hand, the reporters are only faced with the consequences to them personally. They have the absolute right to put their liberty and fortunes at risk."

James C. Goodale, a former general counsel of The Times Company and an authority on legal protections for reporters, said news organizations have sometimes claimed ownership of reporters' notes - in order to protect them.

"It has always been thought to be beneficial to the reporter to have the institutional press on his side," Mr. Goodale said.

Mr. Goodale added that he disagreed with Time's decision.

"A public company must protect its assets even if that means going into contempt," he said. "It has an obligation under the First Amendment to protect those assets, and it's in the interest of shareholders to protect those assets."

Judge Hogan has scheduled another hearing for Wednesday to consider the reporters' fate. Until Time's decision complicated matters, it appeared that the reporters, both of whom have refused to testify, would be told when and where to report to jail at that hearing.

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 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.

Mr. Cooper has testified once in the inquiry in August, limiting his answers to conversations he had with I. Lewis Libby, Vice President Dick Cheney's chief of staff. Walter Pincus and Glenn Kessler of The Washington Post and Tim Russert of NBC have also testified. All of the reporters said they acted with their sources' permission.

The current subpoena to Mr. Cooper concerns information he received from other officials.

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.

Mr. Pearlstine, the Time Inc. executive, said his decision will have at least some impact on reporters' relationships with their sources. It will be hard to measure that impact, he said, because the press is also recovering from journalistic scandals at The New York Times, CBS and Newsweek.

"It's hard to know at this point," he said, "how broad a chilling effect it will have."

http://www.nytimes.com/2005/06/30/politics/30cnd-leak.html?ei=5094&en=42200d95d59e0cb4&hp=&a...