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Matthew Cooper: A Blow to Press Freedom
Milwaukee Journal Sentinel, Jul. 2, 2005
Photo: Matthew Cooper
The cases of reporters Judith Miller and Matthew Cooper, threatened with jail for refusing to disclose a source, have had all the earmarks of a vendetta against journalists generally.
Federal authorities' dogged pursuit of the journalists and their sources has boded ill enough. But now clouding the future of investigative journalism further is Time magazine's agreement to comply with a subpoena to turn over documents concerning Cooper's confidential sources.
Both combine to produce a palpable chill on journalists' ability to dig out sensitive stories that are in the public interest. As a rule, news organizations should avoid using anonymous sources, but when whistle-blowers' livelihoods or valuable disclosures are at stake, such use may become necessary.
Time magazine acted over Cooper's objections. Along with the prosecutor's zeal, this does serious injury to the notion that a journalist's confidential sources should remain confidential - lest no whistle-blower come forward again.
We realize that the U.S. Supreme Court's refusal on Monday to hear the reporters' case put extreme pressure on Time to comply, but we believe that the magazine still could have appealed to the discretion of the federal judge in the case to put his contempt citations aside. Notably, The New York Times has not bent in support of its reporter or the sanctity of confidential sources. Legal efforts to keep sources confidential may fail and consequences ensue. But let's be mindful of what's lost when journalists lose the ability to protect their sources.
In July 2003, conservative columnist Robert Novak, citing 'two senior administration officials,' wrote that a C.I.A. operative, whom he named as Valerie Plame, had been instrumental in getting former ambassador Joseph Wilson to investigate for the C.I.A. whether Iraq had tried to acquire uranium from Niger.
Plame is married to Wilson. The former ambassador embarrassed the Bush administration by publicizing his conclusion that the uranium claim was likely bogus.
Miller, though she conducted interviews on the matter, never wrote on it. Cooper wrote on it once, after Novak. A Justice Department special counsel, Peter Fitzgerald, began presenting evidence to a grand jury on whether a federal law was violated by someone in the administration in the leak to Novak. He moved to force Cooper and Miller to testify, but, curiously, not Novak.
Though Cooper testified about conversations with one source - after the source waived his confidentiality agreement with Cooper - both he and Miller have refused to testify on other possible sources. A federal judge held both in contempt in October, a decision upheld by a federal appeals court. The U.S. Supreme Court then refused to hear the case.
Before the Time magazine decision, a federal judge was poised to put the reporters in jail as early as next week. It's now unclear what Time's documents will do about the contempt citations against Miller, though it could get Cooper off the hook. It's also unclear what Novak has told Fitzgerald, a matter Novak has refused to cast much light on.
The larger harm here, however, is to the vital work done by investigative journalists. Both they and their sources serve the public interest when they make transparent the workings of a government or government agencies that would just as soon not be all that transparent.
Our wish had been that the federal judge who was to determine Miller's and Cooper's fates would simply decide that no public interest is served in jailing them. If he had jailed them, we would have urged Miller and Cooper to stand their ground and their organizations to back them.
The promises that journalists make to their sources must be honored. If not, the media's ability to act as independent watchdogs will be severely hampered. And that will benefit no one except government officials with nasty things to hide.
Ultimately, the solution is a federal shield law that gives reporters on a national level some of the same protection against revealing sources now available in many states. At least two bills have been introduced in Congress.
But that solution may be some time in the making. In the interim, the federal prosecutor's efforts in this case should be viewed with some skepticism. They do not appear to us to be entirely about finding a lawbreaker. In our judgment, the efforts reveal a real animus toward journalists and a refusal to understand the importance that confidential sources can play in the media's ability to tell truth to power.