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In the final days of its 2004-2005 term, the U.S. Supreme Court issued rulings in several well-publicized and controversial cases. Among them were Kelo v. New London and the two Ten Commandments cases. But one of the high court’s most significant-and disappointing-decisions was its refusal to hear the appeals of two reporters facing jail time for refusing to reveal sources. The controversy began in July 2003, when Joseph C. Wilson IV, a former diplomat, wrote an op-ed in the New York Times, criticizing the Bush administration for stating that Iraq had sought uranium in Niger. Wilson had been sent to Africa by the Central Intelligence Agency to investigate the uranium claims in 2002, and he had found no basis for the claims. Eight days after his op-ed appeared, syndicated columnist Robert D. Novak wrote a piece revealing the name of Wilson’s wife, Valerie Plame, a CIA agent, based upon information he obtained from “two senior administration officials.” Presumably, the officials sought to discredit Wilson by insinuating that his trip to Africa was a boondoggle arranged by his wife. In September 2003, the U.S. Department of Justice began an investigation into whether the officials may have broken the law by revealing classified information, then, in December of that year, DOJ appointed a special counsel, Patrick J. Fitzgerald, to lead it. The investigation ultimately focused on two reporters, Judith Miller of the Times and Matthew Cooper of Time magazine, who were believed to have talked to the same sources as Novak. Miller never wrote about the conversation, and Cooper did so only after the Novak column appeared. Both reporters were subpoenaed to testify before a grand jury, and both refused to reveal the identities of the sources. In October 2004, a federal district court held the reporters in contempt for refusing to testify, and this past February, the U.S. Circuit Court for the District of Columbia upheld this ruling. On June 30, following the Supreme Court’s refusal to hear the case, Time Inc., which was also facing contempt sanctions, agreed to turn over subpoenaed documents, meaning that Cooper and maybe both reporters may avoid jail. The entire case could have been avoided if the two senior administration officials had come forward as the sources-or waived confidentiality. After all, President Bush urged his staff to cooperate. Moreover, Novak’s role in the investigation remains a mystery. If he cooperated with prosecutors, then he presumably named his sources, which should have ended the investigation, and if he refused, it is baffling why he has not faced contempt charges also. If the Supreme Court had heard the case, it might have revisited its 1972 ruling in Branzburg v. Hayes and set some limits on prosecutorial overreaching. The two reporters have committed no crime and did not play a role in the disclosure of classified information, yet they are the only ones to have faced charges in this matter so far. With reporters being subpoenaed with increasingly regularity, it is more urgent than ever that some First Amendment privilege be recognized. Such a privilege would help safeguard the public interest in being informed of malfeasance in high places. While the sources here were not whistleblowers exposing government wrongdoing, the principle of protecting the confidentiality of sources must still hold.

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