Reporters and Lawyer Discuss CIA Leak, Jail

DATE February 24, 2005 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Judith Miller, Matt Cooper and attorney Floyd Abrams
discuss the case against Miller and Cooper for refusing to
reveal confidential sources to a federal grand jury
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

My guests are two journalists risking imprisonment for refusing to reveal
their confidential sources to a federal grand jury. Judith Miller is a
Pulitzer Prize-winning investigative reporter for The New York Times. Matt
Cooper is a White House correspondent for Time magazine. Last week a federal
appeals court decided the two reporters must face up to 18 months in jail
unless they reveal their sources to a grand jury which is investigating who
leaked that Valerie Plame was a covert CIA officer.

Plame is married to former Ambassador Joseph Wilson. Her undercover status
was leaked a few days after Wilson wrote an Op-Ed article in The New York
Times in July of 2003 contradicting President Bush's statement that Iraq was
trying to buy material for nuclear weapons in the African country Niger.
Wilson's criticisms were based on a trip he took to Niger to investigate that
issue for the CIA. Many people believe Plame's name was leaked as payback for
Wilson's criticism of the president. The leak was published in a column by
Robert Novak. Neither Matt Cooper, nor Judith Miller published leaked
information about Plame. Cooper co-wrote an article covering the aftershocks
of the leak and, in that article, mentioned that Time had been approached with
similar information. Judith Miller had researched the story, but she never
published it. Miller and Cooper are planning to appeal the court's decision.

Also with us is their lawyer, Floyd Abrams, who is arguably the top First
Amendment media lawyer in the country. He was co-counsel to The New York
Times in The Pentagon Papers case.

Matt Cooper, in the article that you wrote about, you didn't actually publish
the inform--you weren't the person who broke the story about Valerie Plame
being an undercover agent.

Mr. MATT COOPER (Time): That's correct. Yeah.

GROSS: So what is at issue here, since you didn't break the story?

Mr. COOPER: Well, Robert Novak, the conservative columnist, is the one who
used Ms. Plame's name in print first. And he, in effect, broke the story. A
few days later, I wrote a story basically trying to call attention to these
leaks and suggesting that they were nefarious and that they were worthy of
examination. And in the course of that piece, I noted that people had
made--`government officials' was the phrase I used--had made similar claims to
Time about Ms. Plame, and that seems to be what caught the eye of the special
prosecutor.

GROSS: And you didn't even say `to you personally'; you said `to Time.'

Mr. COOPER: I did say `to Time.' That's correct.

GROSS: And, Floyd Abrams, let me ask you, you know, Judy Miller didn't
publish anything. Her sources told her; she decided not to write about this.
Is this unprecedented in any way that you would be held in contempt for not
revealing sources whose information you didn't publish?

Mr. FLOYD ABRAMS (Attorney): For a journalist, it probably is, because for
one thing, the government would rarely know the name of the journalist to call
unless the journalist published a story. I mean, the ordinary confidential
source case that gets to court, the journalist has written something or said
something on the air and some government prosecutor or some defense lawyer
thinks it would be useful in one way or another to get the person's name who
was the source of the story. In this case, it appears that perhaps someone
testified in front of the grand jury and mentioned Judy Miller's name. Matt's
name they knew in the first instance because he had written the piece. So it
is unusual, maybe unprecedented, for a journalist to be called who has not
published a story at all.

GROSS: Judy...

Mr. ABRAMS: Legally, it doesn't make a lot of difference, but as a matter of
fact, it probably never has happened in this way before.

GROSS: Judy Miller, why have you refused to name your sources?

Ms. JUDITH MILLER (The New York Times): Because in investigative journalism,
confidential sources are really the life's blood of what we do. We can't
operate without people who are willing to take a chance on us; that is, to
come forward with either a minority or dissenting view or allegations of
wrongdoing or fraud or corruption in the agencies or companies in which they
work. And it is our kind of sacred obligation as journalists to protect their
identity if, in fact, what they tell us is true and they're not lying, or even
if they're acting in good faith. And in an era in which it's getting harder
and harder to get people to come forward with such information because so much
more is classified after 9/11, it's really vital that these people have
confidence in us. So I think I feel that I just won't be able to do my job if
I don't protect the identity of people who trust me to safeguard it.

And look, Terry, I know journalists and journalism are not perfect, but by and
large, you know, we come out every day. A lot of what the public knows about
how governments and powerful corporations operate is because of a free press,
and I think that that is worth standing on your principles for. I just don't
feel I have much of a choice here.

GROSS: Matt Cooper, why are you refusing to name your sources?

Mr. COOPER: Well, I'd echo the same things Judy said. It's very difficult
to function as a journalist unless one is able to keep confidences. You know,
Terry, what we're seeking in the courts here is not something especially
exotic or far out or some special privilege that we think that we're only
entitled to. You know, as a society, we've granted privileges of
confidentiality to priests and rabbis and the imams and psychotherapists and
social workers. These have all been well-established in the courts by now.
And in 31 states, journalists clearly have these kinds of source confidences
protected by law. We're seeking to, you know, make it clear in the federal
courts, which is where our case has landed, that we have the same kind of
privilege.

GROSS: Floyd Abrams, I think it's fair to say you're America's best-known
First Amendment lawyer when it comes to the media, and you're representing
Matt Cooper and Judith Miller. What do you think are the larger principles at
stake for the public and for the press?

Mr. ABRAMS: Well, really the ultimate principle here and the ultimate
question here is whether journalists are going to be able to continue to
promise confidentiality to sources, especially when they cover the government.
I don't think that we can go on as a society asking lawyers--asking
journalists, excuse me, to go to jail as a price tag for doing their job. We
really shouldn't live in a system, I think, in which a journalist can't know
in the first instance whether he or she will wind up called by a grand jury in
a federal court or a state court or a federal grand jury rather than a state
grand jury, where the difference between the two is that in one case, they're
absolutely protected and the other is they may have no protection at all.

GROSS: Can you explain a little bit more the difference between what the
state laws cover that shield journalists and, you know, what the federal law
says?

Mr. ABRAMS: Sure. Yeah. As Matt said earlier, 31 states have laws
literally written down, adopted by the state legislatures, and 18 more have
decisions by courts, 49 out of 50, saying that journalists in most or all
circumstances may refuse to reveal their confidential sources to state grand
juries, to state courts, to state legislative committees or the like. And so
in a typical murder case, say, there are privileges, so to speak, which exist
for journalists in just about all the states that allow them to say, just as I
can say as a lawyer, `I can't tell you that, because I got it in confidence.'

In the federal courts, the law is a lot less clear, and one of the things this
case may or may not do is clarify that. But what the court of appeals has
said in our case so far is that while there is protection for journalists in
civil cases and maybe even in criminal cases, not so in a grand jury context.
The grand juries have free reign to call a journalist, demand that the
journalist reveal his or her confidential source and punish a journalist if
the journalist keeps his or her word and doesn't reveal who the source is.

GROSS: Can you explain why the grand jury is considered different than other
legal settings and why journalists are required in some instances to reveal
sources to grand juries?

Mr. ABRAMS: Well, the theory in some decisions is that grand juries are sort
of specially empowered to find out what the facts are so that they can decide
who to charge. Grand juries are not held to ordinary standards of relevance,
to ordinary standards of having to ask questions which are narrow and precise
and the like. And the whole idea, some judges believe, of a grand jury now is
to be free-wheeling in their effort to find out the facts. Grand juries can
listen to hearsay, for example, what one person says another person said to a
third person. No court would take such evidence, but a grand jury can in
gathering information.

Now I would argue, that means we have a need for more care in grand juries so
as not to let them trample lightly journalists who have made promises to their
sources. But there are some cases which came out against the press. There
are some which have come out for the press, but there are some which have come
out badly for the press, in the grand jury context particularly.

GROSS: My guests are journalists Matt Cooper and Judith Miller and lawyer
Floyd Abrams. More after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guests are Matt Cooper of Time magazine, Judith Miller of The New
York Times and their lawyer, Floyd Abrams. Cooper and Miller are risking
imprisonment for refusing to reveal confidential sources to a federal grand
jury investigating who leaked that Valerie Plame was an undercover officer for
the CIA.

Now what makes this leak and this source atypical is that the act of leaking
was a crime in and of itself, because what was being leaked was the
information of a CIA agent's identity, and there's a law making that illegal.
There's a law that makes it illegal to reveal the identity of a CIA agent. So
let me ask you, Judy and Matt, as reporters getting this information and you
know that it's illegal to reveal this information, would it have ever entered
your mind to turn the source in, to report on the source? I don't mean to
report in the paper; I mean to report to the authorities the fact that this
source was committing a crime while they were speaking to you.

Mr. COOPER: Well, Terry, it's not entirely clear it was a crime. I mean,
the statute governing leaks is a fairly complicated and untested one, and it's
very hard to prove even if this special prosecutor were to identify the
various leakers. Even if they were to do that, there's no guarantee that they
could convict them. It's very hard. They have to have had intent, they have
to have been at a certain level of--have obtained the name of the person in
the course of their work. Floyd can elaborate better on the legal standards,
but it's not cut and dry what is and isn't a crime under this statute.

Let me just say, I think it's not the criminality as such of the leak that I
think should be the determinant of whether a reporter betrays his source. I
mean, many leaks have involved to some degree a degree of criminality, I
think. In some of the high-profile business cases like Enron and MCI
WorldCom, there were some questions as to whether the person was legally
entitled to be making the leaks, were they stealing intellectual property and
such? Certainly The Pentagon Papers, which Floyd does well, involved the
divulging of classified material, which in itself was an assumed crime at the
time.

So in the past, we've certainly protected confidences of the leakers that were
involved in a degree of criminality. What's different here, of course, is
that the leaks seem to have been of a nefarious nature and of the kind that
most people consider odious rather than in the public good, but I think, you
know, a confidence is a confidence, and it's hard to betray--it's hard for
reporters to pick and choose what's a good leak and a bad leak.

Ms. MILLER: And I would just add one thing to what Matt said, Terry, which
is we're not even sure that Valerie Plame was covered by this law. I mean,
that's one of the many, many questions that we don't know the answer to
because the law is very specific about what constitutes a cover agent. It's
not a crime to leak the name of a CIA official. It may be a crime, under
certain circumstances, to leak the name of someone who was undercover, in deep
cover, overseas for at least--you know, in the past five years acting that
way. And we're not even certain that Valerie Plame met those standards. It's
this inability to have the facts in the case that I think complicates Floyd's
ability to defend us and our ability to defend ourselves.

GROSS: And why don't you know that information?

Mr. ABRAMS: Well, we don't know it because the courts have said that since
the information is to be found in grand jury testimony, that that, by its
nature, is secret. So even when we have said to the judges, `Just let us as
lawyers see it. We won't even show it to Judy and Matt if you tell us not to.
Let us see it so we can write briefs to you, arguing to you that the
government hasn't met whatever legal tests it has to meet or arguing to you
maybe that maybe she wasn't a covert agent at all.' But the answer has been,
`No, that's all secret. We'll look at that ourselves.' One of the opinions
of this case contains eight blank pages, literally white page after white
page, not on the original--The original is filled, I'm sure, with
information--but even for the lawyers here, we're not allowed to see what it
is that the government has submitted in this case which has persuaded judges
that if there's some balance to be struck here, that we're on the wrong side
of the balance.

GROSS: Floyd Abrams, I know grand jury testimony isn't public, but would you
be willing to discuss some of the argument that you made in court on behalf of
Judy Miller and Matt Cooper not revealing their sources?

Mr. ABRAMS: Oh, sure. Well, one of the things I said which we haven't
touched on yet here starts with the proposition that as we've said, 49 states
now have legal protection for journalists with respect to what they say in
front of state grand juries or state bodies or state courts or the like. And
we argue that in a similar way, that the federal courts have ruled that
psychotherapists and social workers are entitled to a federal privilege in
part because they have state privileges in all 50 states. So here, we argue
that the courts should say that it really serves the public for journalists to
be able to protect their confidential sources and that that has been
established and established without any real problems in all of these state
courts that now have this protection.

And so we argue that it is time for the federal courts to say that there is a
federal privilege as well. And one of the three judges agreed with that,
although he said he thought it should not be an absolute privilege but a
qualified one, and another one may agree and did not reach the issue. So
that's one of the things we talked about. The other main thing we talked
about was the First Amendment.

GROSS: The three judges in this case ruled against you. Floyd Abrams, could
you just summarize what the reasons were?

Mr. ABRAMS: I'm not sure I want to, but what they said was, as regards to
the First Amendment, they said that a 1972 Supreme Court opinion in the
Branzburg case had, in their view, concluded that there was no protection
for journalists in front of a federal grand jury. And on the argument that
there should be a common law or a judge-made protection for journalists, the
court disagreed very thoroughly internally. As I said, one judge said, `Yes,
I agree with you that that sort of protection exists, and I'm ready to say
that it exists, but I think on these facts, these journalists ought to have to
reveal their sources.'

Another judge said, `No, there's no such protection at all.' And the third
judge said, `I don't have to decide that yet, and I'm not going to decide it
yet, but I think that even if there is such protection, that the need for the
information is so great--again, because it's a grand jury looking into these
matters, the need is so great that I'm going to vote against the journalists
anyway.'

GROSS: Now in the Supreme Court decision of 1972--That's the precedent that
the appeals court was following--Justice Byron White wrote that they were
going to decline to grant newsmen a testimonial privilege that other citizens
don't have. Did you think that you were going to be able to succeed in the
light of that precedent?

Mr. ABRAMS: Well, I was certainly aware of the precedent, and indeed, I was
in court on the day when that case was argued. What we had argued about that
was that even though the opinion was a 5-to-4 opinion, that the fifth vote was
that of Justice Powell, who also wrote a separate opinion, a concurring
opinion in which he basically said in none-too-clear language but nonetheless
said that there was a balancing test which ought to be followed, that the
First Amendment still existed in this area and that courts ought to engage in
a sort of case-by-case balancing, assessing how much the government needed the
information and how much the cause of providing information to the public via
confidential sources would be harmed by requiring a journalist to testify.
And so our reading of the case was that since it was a 5-to-4 opinion, that
fifth vote, which was indispensable for the majority, was what should be
understood to be the key opinion in the case. The three-judge court did not
agree with us on that, and that is certainly one of the things that we will
argue if we have to go to the US Supreme Court on this.

GROSS: Journalists Judith Miller and Matt Cooper and First Amendment lawyer
Floyd Abrams will be back in the second half of the show. I'm Terry Gross,
and this is FRESH AIR.

(Announcements)

GROSS: Coming up, more on why journalists Judith Miller and Matt Cooper are
refusing to reveal confidential sources to a federal grand jury. Then we'll
hear from columnist Steve Chapman, who says this is a battle the press can't
win and doesn't deserve to win.

GROSS: This is FRESH AIR. I'm Terry Gross. Back with Judith Miller, a
Pulitzer Prize-winning investigative reporter for The New York Times, and Matt
Cooper, White House corespondent for Time magazine. They're facing up to 18
months in prison for refusing to name confidential sources to a federal grand
jury, which is investigating who leaked that Valerie Plame worked as a covert
officer for the CIA. Last week a federal appeals court said they needed to
comply with the grand jury. Miller and Cooper are pursuing the appeals
process. Also with us is their lawyer Floyd Abrams. He represented The New
York Times in the Pentagon Papers case. I asked him about the Supreme Court
case that set the precedent which the appeals court based its decision on.

Did the 1972 Branzburg case, the case that sets the precedent for revealing
sources, did that case in its time influence press coverage of Watergate or
the Vietnam War?

Mr. ABRAMS: No, because it really has not been enforced, in a way, that--it
much interfered with the journalistic process. I mean, if we're told now that
what Branzburg means--indeed, what some judges are saying--what Branzburg
clearly means is that journalists just don't have any protection. That sure
isn't the way it's been read for the last 30 years, and that's the reason that
the case has not interfered with journalists going about their business.

GROSS: Judy Miller, you've said, `I risk going to jail for a story I didn't
write, for reasons a court won't explain.' Can you elaborate on that?

Ms. MILLER: Well, I was just referring to what Floyd discused earlier, which
was those eight blank pages, four of which are devoted to Matt, and four of
which are devoted to me, when this one judge discussed the balancing test.
What the judge thought, why he thought it, why he thought the balance rested
with the grand jury, we don't know. And I just find this--I'm sorry--but a
little Orwellian.

GROSS: Matt Cooper, Judy Miller, you both spoke with a source or sources who
revealed the identify of Valerie Plame. But Judy Miller, you didn't write
about it at all, and Matt Cooper, you didn't print the story. You just wrote
about the story after it was broken. You wrote about the phenomenon of the
story after Robert Novack actually leaked Valerie Plame's identity. Now
Robert Novack--no one really knows what the story is with Robert Novack. You
are both being held in contempt. No one really knows whether he cut a deal
with a special prosecutor or whether he's told them who his sources were or
not. And I'm wondering, what are some of the questions you have about Robert
Novack's role and his relationship to this grand jury and how that affects
you?

Mr. COOPER: Well, it would be helpful for us to know what Mr. Novack has
done because it pertains to our case. I mean, if the prosecutor knows what he
needs to know in the case of this leak investigation, basically has
everything, and is just using Judy and I to dot I's and cross T's, that's
germane to our case because, you know, one of these balancing questions is:
is the information absolutely essential that you're seeking to get the
reporter to testify to? So while Floyd can elaborate better, but it would
certainly be helpful to know what Novack has done.

Ms. MILLER: And just one small correction, Terry. I have never said that
anybody told me the identify of Valerie Plame, that anyone revealed her name.
I haven't said anything about what I knew at the time, which is--because I
didn't write anything.

GROSS: Got it. I should mention here that we've contacted Bob Novack's
offices and asked for his comment and he has declined, as he's declined the
requests of many other journalists.

Matt Cooper, you've been quoted as saying, `It's bizarre and disappointing
that Robert Novack hasn't said, `Judy and Matt shouldn't go to jail.' Were you
expecting him to say something like that, and do you think he could say
something like that in the position that he's in?

Mr. COOPER: Well, he's certainly legally able to say something like that.
Look, I'm perfectly willing to say that Robert Novack enjoys the--should enjoy
the same protections as Judy and I, that he shouldn't be coerced into
divulging sources. I don't want to see that. I meant in that quote, which I
made to The New York Times, I just wished he'd expressed the same degree of
solidarity with fellow journalists here, but he hasn't chosen to, and that's
his prerogative.

If I can make one other point here, you know, there's a tendency in our
polarized country to see so much--so many issues in left or right terms, and I
think it's important to note that this is not a left-right issue here. Right
now in Congress, two conservative Republicans, Mike Pence in the House of
Representatives, and Richard Lugar in the Senate are offering a bill that
would offer a great deal of clarity to this legal situation by creating a
federal shield law for journalists such as Judy and myself. You know, it
would just be a mistake for listeners to think that this is kind of a
left-right issue here. Lots of conservatives support our case, and it's I
think more a question of First Amendment than anything else.

GROSS: Well, and since you brought up the question of left and right, I think
a lot of our listeners will be wondering whether you, the parties involved,
see your situation as being part of a larger conflict between the Bush
administration and the press?

Mr. COOPER: Well, I think there have been some run-ins between the Bush
administration and the press because they've had, you know, a penchant for
secrecy. There's--as Judy can speak to it better than I--there's been a large
degree of classification of documents that heretofore weren't, and tensions
between the White House press corp, of which I'm a part of, and the White
House have been rough at times. But, you know, I certainly don't feel a
victim of political persecution, per se. You know, it's--as I said, the
politics of this are quite muddled. There are Republicans in Congress who are
trying to create a shield law for journalists; on the other hand there were
mostly Democrats who called for this special counsel in the first place, so
it's--the politics here are quite muddled.

GROSS: Judy, what do you have to say?

Ms. MILLER: I would essentially agree with that. I would just point out one
other thing too, which is, you know, ironically I think that if the Bush
administration's Justice Department still had control of this case, there'd be
some kind of same standards eventually. I mean, someone would take a
political--make a political judgement about whether or not this is palatable
to the public, you know, putting journalists in jail for things they didn't
write, or for doing their jobs. But when you get a special prosecutor, as we
saw with Bill Clinton, as we've seen in many other cases, you get an
individual who really is committed to, kind of, you know, bringing a
prosecution. And you know, I think there is a tendency, when this is your
sole mission and mandate in life to, kind of, go get your man or your person,
and I wonder if that isn't the factor here. I have the highest regard for Mr.
Fitzgerald. I used to watch him when he was prosecuting al-Qaeda cases, and I
just wish that he were still doing that.

GROSS: Matt Cooper, you are refusing to divulge your sources. However, you
did decide to divulge one source, Lewis Libby, after he agreed to release you
from the confidentiality pledge--there was like a waiver of confidentiality.
Can you talk about your decision in doing that, and how you feel about this,
kind of, new emphasis on the confidentiality waiver?

Mr. COOPER: Sure, Terry. Well, just to review the facts, I had--this is
actually my second subpoena. I'd gotten one last year that was of a more
limited nature. The current one is basically for everything I've--that's in
my notebook related to these stories. But the first one was quite focused.
It asked about my conversations with one individual, Lewis Libby, the vice
president's chief of staff. And we fought that in the courts, and at a
certain point we thought we would just go to the source himself and seek his
unambiguous clear waiver, and see if he was willing to grant it. And if he
was, I was certainly willing to give testimony. You know, the idea of this
source protection is to protect the source. If the source wants you to speak,
it's my feeling--others might disagree--that, you know, there's really no
problem in coming forward. Otherwise you're--you know, you're hanging by the
branch of a principal and the tree walks away. And I think there's really no
reason not to speak. And so I reached out to Lewis Libby and got his personal
unambiguous waiver, and then I gave testimony to the special counsel last
August.

And, in fact, he accepted my testimony and my contempt citation at that time
was cleared. I was in the legal clear. And, you know, I think there are
certainly times when reporters, you know, can feel comfortable talking to
grand juries or court settings, if they're not dealing with confidential
sources, a source gives them a waiver. I'm not a zealot about these matters,
but, you know, the subpoena I'm under now is much more sweeping and much
harder to comply with.

GROSS: Well, I want to thank you all. Judy Miller, Matt Cooper, Floyd
Abrams, thank you for being with us.

Mr. ABRAMS: Thank you, Terry.

Mr. COOPER: Thanks.

Ms. MILER: Thank you.

GROSS: Journalists Matt Cooper and Judith Miller are risking imprisonment for
refusing to reveal the names of confidential sources to a federal grand jury.
Floyd Abrams is their lawyer. We invited several people to talk with us who
declined: special prosecutor Patrick Fitzgerald, Judges David Sentelle and
David Tatel of the US District Court of Appeals, and columnist Robert Novack.

Coming up, we speak with Steve Chapman, a syndicated columnist who thinks
Cooper and Miller should reveal their sources. This is FRESH AIR.

(Soundbite of music)

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Interview: Steve Chapman discusses why he believes Judith Miller
and Matt Cooper should reveal their confidential sources to a
federal grand jury
TERRY GROSS, host:

Journalists Judith Miller and Matt Cooper just explained why they're risking
imprisonment rather than revealing the names of confidential sources to a
federal grand jury. The grand jury is investigating who leaked that Valerie
Plame was an undercover officer for the CIA. My guest Steve Chapman writes a
syndicated column for the Chicago Tribune, and is a member of the paper's
editorial board. He thinks Miller and Cooper should reveal their sources to
the grand jury.

Steve Chapman, as you have pointed out in one of your op-ed pieces, the news
media have sided strongly with reporters Judith Miller and Matthew Cooper.
But you say that this is a battle the press can't win and doesn't deserve to
win. Why not?

Mr. STEVE CHAPMAN (Reporter, Chicago Tribune): Well, I think journalists are
citizens first, and one of the prime obligations of citizenship is to
cooperate with law enforcement. When an ordinary person has--is witness to a
crime, he or she is liable to be called to testify before a grand jury about
it, and most people accept that obligation as a matter of routine. And I
don't think really journalists are any different from anybody else in this
situation. And I think when you have a case like this, where two journalists
apparently were witnesses to a federal crime, a very serious felony, they have
the same duty as anybody else.

GROSS: Now, Floyd Abrams who is the lawyer for Cooper and Miller, says that
the law is actually unspecific about what constitutes a covert agent, and he's
not even sure if Valerie Plame meets the test and whether she'd be covered by
the law. And he's not being given enough information to help him understand
that.

Mr. CHAPMAN: Well, two things I would say about that. The first is, he had
a chance to raise those points in court. Two federal courts--a district court
and an appeals court--have found that there's sufficient evidence that a crime
was committed to proceed with the grand jury investigation. I think that's
why we have courts, to make decisions like that. If you have a disagreement
between lawyers about whether a crime has been committed, then you turn it
over to the judge and the judge makes a decision. Two different courts have
ruled against Mr. Abrams. He's a legendary First Amendment lawyer. I have
great respect for him. But in this case he has lost that argument.

The other point I would make is that Patrick Fitzgerald is a very highly
regarded career prosecutor who was brought in as a special counsel in this
investigation after the attorney general, John Ashcroft, disqualified himself.
And one thing prosecutors have a lot of experience at is looking at cases,
deciding there is not enough evidence that a crime was committed, deciding
there's not enough evidence to convict somebody of a crime, and walking away
from the case. Patrick Fitzgerald doesn't need the publicity. He's gotten
plenty out here. He's not a cowboy. He's not a grandstander, and I don't
think he would be pressing forward with this case if he weren't very convinced
that a crime has been committed.

GROSS: Now Floyd Abrams says that this is really not a black and white issue,
that in the 1972 Supreme Court case that is being used as the precedent for
the federal appeals court decision, that Justice Lewis Powell wrote in an
agreement with the majority that actually there was a balancing test that
should be required in situations of confidentiality, and the courts should
engage in a case-by-case call, balancing how much the government needs the
information vs. how much the cause of journalism would be harmed by revealing
confidential sources. So, you know, he's saying, `Look, this is not black and
white.'

Mr. CHAPMAN: Well, again, two courts have found that the Supreme Court
decision on this is dispositive, that there's basically no First Amendment
privilege for reporters to refuse to testify in a grand jury investigation.
The Powell opinion in that case, that concurrence, doesn't give them much room
to argue that there is a balancing test. About all Justice Powell said was
that a jury--a grand jury has to be acting in good faith, and if it's not,
then you can't force a journalist to testify. Nobody has alleged that this
grand jury is not acting in good faith.

The other point I want to make about that is, if you look at the district
court decision and the appeals court decision, both of them engaged basically
in a balancing test. They found that this was direct evidence of a crime of
guilt or innocence, that it was a very narrow inquiry by the prosecutor, and
that there was no other way to get this information. If you look at the, sort
of, conditions that are set up in most state shield laws to try and limit the
exposure of journalists to these kind of subpoenas, those conditions have
already been met.

GROSS: Even if Miller and Cooper were witnesses to a crime, and they're not
saying that they were, what kind of precedent would this set if they were sent
to prison for not revealing their sources? You know, they're saying, `You
don't know what information is going to be leaked to you when you're a
journalist.'

Are you concerned that in some cases a whistle-blower would be breaking the
law for the larger good, revealing a secret document that revealed wrongdoing
that the public should know about, but there'd be a law against revealing this
secret document, for example.

Mr. CHAPMAN: Well, of course, a lot of leaks are illegal and they're not
prosecuted, and they shouldn't be prosecuted because they do serve a public
good. And a lot of the state laws have a condition in them that says, you
know, even this was--even if this was against the law, and even if the
journalist knows who committed the crime, we're not going to make the
journalist testify because the disclosure itself served the public interest.
And I would like to see a federal shield law that would incorporate a standard
like that. Unfortunately, we don't have one. And, unfortunately, even if we
had one, I don't think Miller and Cooper would qualify under this because the
leak itself was really of no public value. It was just a matter of political
retribution, from all we can tell.

GROSS: Could you argue that Miller and Cooper did their job quite well?
Well, Miller is not even saying what information, if any, she got. But Cooper
is saying that Time magazine was leaked information. But neither Cooper nor
Miller published that information. So, you know, they're being prosecuted for
information they didn't even publish.

Mr. CHAPMAN: Well, Time magazine actually did publish it--a reference to the
fact that sources in the administration were trying to get Valerie Plame's
name out. This was after the...

GROSS: But that was after...

Mr. CHAPMAN: ...Novack column.

GROSS: ...the Novack column...

Mr. CHAPMAN: Right, after.

GROSS: ...so they didn't break anything.

Mr. CHAPMAN: No, they didn't break the story. But, you know, Patrick
Fitzgerald is not going after them because they wrote about it. He's going
after them because they were witnesses to a crime, basically, because the
disclosure is the crime, not printing the name. Robert Novack is not being
prosecuted because he didn't commit any crime. It's not a crime to print
Valerie Plame's name. It's only a crime for a federal employee to leak that
name.

GROSS: What do you make of Robert Novack's silence on this issue? A lot of
people are assuming this, if he hasn't cooperated with the grand jury, then
how come he isn't being threatened with prison? And if he has cooperated with
the grand jury, then doesn't the grand jury have the information it needs
about who's behind the leak? And why do they need it from Miller and Cooper?

Mr. CHAPMAN: Well, as you know, grand jury proceedings are secret.
Prosecutors don't talk about them. People who are called before them are free
to talk about them if they want. Novack has refused to comment on whether he
has been subpoenaed and on whether he's testified. From that, my assumption
is that he has been subpoenaed and he has testified. Under what terms, I
don't know. The reason that might not settle the case, and let Miller--make
Miller and Cooper kind of unnecessary for this investigation--I mean, there
could be a few explanations.

One is that you don't want to go to court with only one person's word against
another. So if Novack says, `So-and-so leaked it to me,' and so-and-so says,
`No, I didn't,' it would be very helpful--probably critical to a prosecution,
to have another witness who can say, `Well, actually, that source leaked it to
me as well.' That would greatly strengthen the case.

The other possible explanation is that Novack's sources may not be the same as
Miller and Cooper's sources. You could have had several people in the
administration who were peddling this information, trying to get it out. And
some of them called Novack, some of them called Miller, some of them called
Cooper. They may not all be the same one.

GROSS: Novack witnessed a crime, if a crime was committed, when the source
handed over the information about Valerie Plame. Novack printed that
information, which revealed the undercover identify of Valerie Plame. So, you
know, wouldn't he be at least complicit in that crime?

Mr. CHAPMAN: Well, it's not a crime to print the name. If it were, then a
lot of leaks that involved classified information would be crimes on the part
of newspapers and broadcast outlets. I guess if Novack was a witness to a
crime and he gave the evidence to a grand jury, he's discharged his legal
obligation. The fact that he printed it may be grounds for journalists to
hold him in contempt, but it's not grounds for a grand jury to hold him in
contempt, or a court to hold him in contempt.

GROSS: My guest is Steve Chapman. He writes a syndicated column for the
Chicago Tribune. We'll talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Steve Chapman. He's a syndicated columnist for the
Chicago Tribune. He's been responding to journalists Judith Miller and Matt
Cooper, who explained earlier why they're risking imprisonment rather than
revealing confidential sources to a federal grand jury.

Now in a separate investigation, Judith Miller has been asked to hand over her
phone records, asked by the US prosecutor in Chicago, Patrick Fitzgerald,
who's also the special prosecutor in the Valerie Plame leak. Now Miller says
that the records they're asking for are basically all of her phone records in
the period after September 11th, a period in which she called basically every
source that she has, so she would be handing over the names and numbers of all
of her sources if she complied with this, and she is, therefore, not
complying. Do you have an opinion on that one?

Mr. CHAPMAN: Well, that is a separate dispute, and I--and that does obviously
give me some reservations. And I think that's why it would be a good thing to
have a federal shield law, to make sure that prosecutorial inquiries are kept
as narrow and limited as possible to avoid, sort of, sweeping investigations
of, you know, every source that a reporter might have.

GROSS: Why do you think there should be a federal shield law for journalists,
and what do you think it ought to say?

Mr. CHAPMAN: Look, there are a lot of cases where the simplest thing for a
prosecutor is--you see a story in the newspaper about a crime that's been
committed or a leak that you know is illegal, and the prosecutor could just
decide, `Well, you know, I don't want to spend a lot of time on this, so let
me just subpoena the journalist and find out who the source was.' There may be
a lot of other ways to find that information. And I think journalists ought
to be, sort of, the last resort for prosecutors, not the first resort; that's
what a shield law would do. It would require prosecutors to meet
certain--pretty strict conditions before they can subpoena a reporter. And
only if those conditions are met would a reporter be forced to disclose a
source.

You know, the reporters in this case--you know, they're outstanding reporters,
and I have a lot of respect for them, and I admire their fortitude, even
though I think they're mistaken. But they do have a point when they say--and
the present general has a point, when it says, `If this becomes commonplace,
it is going to dry up the flow of information that the public needs.' And I
think a federal shield law would prevent that from happening. It would limit
it to cases where it's really essential for law enforcement.

GROSS: The special prosecutor has asked some sources to sign confidentiality
waivers that would relieve journalists from the promise of confidentiality
that they gave to the source. Do you have any concerns about this growing use
of confidentiality waivers?

Mr. CHAPMAN: Well, what a journalist should do is tell a source, `I will do
everything I can to keep your identity secret. But if I'm faced with a legal
court order to testify, I'm going to follow the law.' You know, it's--a
promise to a source is a little like a marriage vow, you know. A lot of
people walk up the aisle every year and vow not to separate till death do us
part. But a lot of people eventually decide that the evil of honoring that
promise is greater than the evil of breaking it. And I think in a situation
like this where you have somebody who's committed a potential felony, and the
journalist in this case had no reason to expect that they would have to go to
jail to protect its source, they shouldn't go to jail to protect that source.

GROSS: But I think the point journalist are trying to make now is that
you're--when you promise confidentiality, that's a sacred promise. You're
not--you don't then go home and decide, `Well, should I keep that promise or
not?' because the whistle-blower is often risking their career or risking
their life to reveal that information, so if they're revealing that
information to a journalist who's, you know, willing to divorce them, then it
means the journalist can't be trusted with the information.

Mr. CHAPMAN: Journalists can't--should not be trusted to break the law and
defy court orders to protect a source, in my opinion.

GROSS: Well, Steve Chapman, thank you very much for talking with us.

Mr. CHAPMAN: You bet.

GROSS: Steve Chapman writes a syndicated column for the Chicago Tribune.
Earlier we heard from journalist Matt Cooper and Judith Miller, and their
lawyer Floyd Abrams.

(Credits)

GROSS: I'm Terry Gross.
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