WASHINGTON -- Reporters at The New York Times and Time magazine can be jailed if they continue to refuse to answer questions before a grand jury about their confidential conversations with government sources about the leak of a covert CIA officer's identity, a federal appeals court ruled yesterday.
The decision upholds a trial court's finding last year that Judith Miller of The New York Times and Matthew Cooper of Time magazine are in contempt of court and should be compelled to testify as part of an investigation into whether Bush administration officials knowingly leaked the name of CIA operative Valerie Plame in 2003.
The unanimous opinion was an expected, but still painful blow for the reporters, news organizations, and advocates of free speech. The three-judge panel of the US Court of Appeals in Washington ruled there is no First Amendment privilege that allows reporters to conceal information from a criminal inquiry.
Yet the ruling held out some hope for the media, with two judges suggesting that common law could shield journalists seeking to protect the identities of confidential sources in other situations.
The panel's decision is the first time in more than 30 years that a federal appeals court specifically addressed whether reporters can be forced to break their promise to unnamed sources when a prosecutor is trying to solve a crime.
Lawyers for The New York Times and Time magazine said they would appeal the decision to the full appellate court and possibly the Supreme Court and would seek a stay from the appellate court to keep the reporters out of jail while the case is pending.
Miller, 57, and Cooper, 42, have fought to quash subpoenas requiring them to answer questions from a special prosecutor. Plame's name first appeared in a July 14, 2003, syndicated column by Robert Novak, just weeks after her husband, former ambassador Joseph Wilson, criticized the Bush administration in a newspaper opinion piece.
Wilson had been asked by the CIA to visit Niger in 2002 to investigate reports that Iraq hoped to buy uranium for nuclear weapons. After returning, Wilson alleged that President Bush had exaggerated that evidence to justify going to war.
Novak's column said two unnamed administration officials had told him that Wilson's wife was a CIA operative and had helped arrange his trip to Niger.
A government official who knowingly identifies a covert operative could be in violation of the Intelligence Identities Protection Act. The Justice Department appointed Special Counsel Patrick Fitzgerald to investigate.
According to the appellate court's opinion, Fitzgerald already knows the identity of the person with whom Miller spoke, and wants to question her about her contact with that ''specified government official" on or about July 6, 2003. Miller never wrote a story on the subject.
Chief Judge Thomas F. Hogan, who found Miller and Cooper in contempt in October, had ordered the two detained for as long as 18 months or until the grand jury's term expired, whichever was shorter. The term of the jury is set to expire at the end of April but could be renewed.
''We are deeply dismayed at the US Court of Appeals decision to affirm holding Judith Miller in contempt and at what it means for the American public's right to know," Times publisher Arthur Sulzberger Jr. said in a statement. ''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 protection of confidential sources was critically important to many groundbreaking stories, such as Watergate, the health-threatening practices of the tobacco industry, and police corruption," he said.
In its ruling, the appellate panel likened the case to a 1972 dispute in Kentucky. In that case, the Supreme Court ruled that the reporter, who witnessed members of a drug ring manufacturing hashish, could be compelled to reveal confidential sources crucial to solving the crime. The court found the First Amendment didn't protect the journalist.
The appellate judges said this case was different from the classic uncovering of wrongdoing by reporters relying on unnamed sources. In a concurring opinion, Judge David Tatel said the purpose of these government leaks appeared to be to smear a person who made allegations against the Bush administration.
''Discouraging leaks of this kind is precisely what the public interest requires," Tatel wrote.
Twenty-five American journalists have been jailed over concealed sources and information since 1961. Vanessa Leggett, who in 2001 refused to divulge the sources on an alleged murder-for-hire in Texas, served the longest sentence, 5Â½ months.