The Year of Leaking Dangerously: Shadowy Sources, Jailed Journalists, and the Uncertain Future of the Federal Journalist's Privilege
Fargo, Anthony L., The William and Mary Bill of Rights Journal
After the Washington Post revealed in November 2005 that the Central Intelligence Agency (CIA) maintains a series of secret prisons in foreign countries where terrorist suspects are held and interrogated,1 members of Congress and the CIA called for an investigation into the identity of the source or sources for the story.2 Post media critic Howard Kurtz wondered in a subsequent column whether the uproar over the prison story would culminate in the reporter and/or the newspaper being subpoenaed and threatened with heavy fines or imprisonment if they did not identify the sources.3
Kurtz's concern was not merely speculative. Shortly before the Post story appeared, New York Times reporter Judith Miller left a Virginia jail after serving more than twelve weeks for civil contempt of court.4 Time Magazine reporter Matthew Cooper narrowly escaped the same fate when he agreed to cooperate with a grand jury investigation into who might have identified an undercover CIA operative to Miller, Cooper, and other reporters.5 Cooper said his source released him from his promise to keep the source's identity confidential shortly before the hearing at which Miller was sentenced.6 The dramatic events of July 6, 2005, followed months of legal wrangling over whether journalists have a constitutional or common law privilege protecting them from being forced to disclose confidential information.7
Meanwhile, four reporters from various news organizations were considering their next moves after the U.S. Court of Appeals for the District of Columbia ruled against them in another privilege case.8 The reporters were held in civil contempt of court after they refused to name their sources for stories linking Wen Ho Lee, a scientist who worked at the United States' Los Alamos nuclear weapons laboratory, to the alleged sale of nuclear secrets to China.9 Lee was suing the United States Departments of Justice and Energy for violating the Privacy Act10 by leaking information about the investigation to the press.11 A fifth reporter, Walter Pincus of the Washington Post, was found in civil contempt in November 2005 for refusing to cooperate with Lee.12 His appeals were still pending at this writing.
A few months before Miller was sent to jail and the D.C. Circuit first ruled in the Lee case, a television reporter in Providence, Rhode Island, was released early for good behavior from a six-month home confinement sentence for criminal contempt. 13 Reporter James Taricani defied an order to tell a special prosecutor the name of his source for an FBI surveillance tape showing a city official allegedly taking a bribe, which his station aired while the official's corruption trial was pending in 2001. 14 The special counsel's investigation focused on whether the source violated a judge's gag order by giving the tape to Taricani.15
From the summer of 2004 to the summer of 2005, two reporters, Miller and Taricani, entered federal custody, and one narrowly escaped joining them.16 By the end of 2005, five other reporters were facing the same fate in the Lee case unless they obeyed orders to answer deposition questions or prevailed in their dwindling appeal options.17 Meanwhile, eight journalists and news organizations subpoenaed in regard to another civil suit against the government were spared, at least temporarily, from being forced to comply when the plaintiff withdrew the subpoenas.18 Although the press won a rare victory during that time period when a federal judge ruled that the government could not subpoena the phone records of Judith Miller and fellow Times reporter Philip Shenon in another investigation,19 the prosecutor seeking the records filed notice that he planned to appeal that decision to the U.S. Court of Appeals for the Second Circuit.20 In response to the apparently unprecedented21 number of journalist's privilege cases in such a short time, two United States senators and a representative introduced bills in Congress to create a federal shield law. …