Judges Skeptical of First Amendment Protection for Reporters - C.I.A. Leak

[TacticalPeek]

Judges Skeptical of First Amendment Protection for Reporters in C.I.A. Leak Inquiry
By ADAM LIPTAK

Published: December 9, 2004

WASHINGTON, Dec. 8 - Hearing arguments on whether two journalists should be jailed for refusing to name their confidential sources to a grand jury, a three-judge panel of the federal appeals court in Washington seemed on Wednesday to reject their main argument, which is based on the First Amendment.

Only one judge, David S. Tatel, appeared to leave the door open for the possibility that journalists called before grand juries might have some legal protection, though not under the First Amendment. But the proposed protection that Judge Tatel sketched out in a series of questions might not be of any help to the journalists in the current case, Matthew Cooper of Time magazine and Judith Miller of The New York Times.

Both Judge Tatel and Judge David B. Sentelle gave strong indications that a 1972 Supreme Court decision, Branzburg v. Hayes, definitively and negatively answered the question of whether the First Amendment provides reporters with any protection when they are called before a grand jury and questioned about their confidential sources.

"How is this case any different than Branzburg?" Judge Sentelle asked Floyd Abrams, the lawyer representing the reporters.


more
http://www.nytimes.com/2004/12/09/politics/09leak.html

[bluestateguy]

1. Good! Judith Miller will rot in jail until she fesses up!

All she has to do is fess up.

[scurvy_n_disastrous]

2. i agree, but it's bigger than ms miller, alas

chalabi notwitstanding, it's about all whistleblowers for whom blowing a whistle is a breach of contract...

[Occulus]

5. It's big in both directions

that's why so many people are of two minds on this.

[Just Me]

11. Seems like the reporters who refused to publish the outing,...

,...of CIA agent Plame are the ones paying the price for failing to identify a source. That's not just. I believe this is another example of a discriminatory practice, disciminating against anyone who isn't radically right-wing. The anthrax attacks were similarly discriminatory.

[Mandate My Ass]

13. The leakers are not a "source" by any accepted definition

of the term. A confidentioal source is someone who provides information on gov't wrongdoing in exchange for anonymity so as not to face reprisals from the perps.

The people are contacted these journalists are the perps, not sources and definitely not whistleblowers. There is no breach of journalistic confidentiality in naming their names. In fact, I think it is criminal to continue to protect them when they were attempting to make the reporters accessories to a crime.

[Just Me]

14. Maybe there is more than one "perp",...

,...and the prosecutor is protecting the "perp" that leaked to Novak while trying to reveal the "perp" that contacted Miller and the other journalist.

Why else would Novak, who wrote about Plame, get off the hook, while these other two journalists who chose NOT to publish the info get slam-dunked?

[Mandate My Ass]

25. Could very well be. I think (hope pray) Fitz has something

extra special in store for Novak and hopefully Rove, whose MO is all over this escapade. Busy little beavers those guys in Cheney's office.

[warrens]

19. An unsolicited call is not a source

You have no expectation of protection if you call a reporter and say, Hi, this is Jim Jones and I just robbed the bank down the street. Miller et al are just playing ball with people who MIGHT be sources on OTHER stories. It doesn't work that way.

Even if they had offered protection, you have no right to cover up a crime. Whistleblowers are by definition NOT committing a crime, and can be protected.

The case in Rhode Island is different, in that there was a gag order on the participants in the trial, and one of the lawyers leaked a videotape to a TV station. That's getting into a very gray area, because the REPORTER was not under the gag rule. Since the lawyer has fessed up, that should make his "contempt" moot.

[TaleWgnDg]

3. There is no journalist/reporter privilege in federal law . . .

as this NYTs article indicates where the Appeals Court inquried as to . . . Branzburg v. Hayes et al., 408 U.S. 665 (1972):

"The First Amendment does not relieve a newspaper
reporter of the obligation that all citizens have
to respond to a grand jury subpoena and answer
questions relevant to a criminal investigation,
and therefore the Amendment does not afford him
a constitutional testimonial privilege for an
agreement he makes to conceal facts relevant to
a grand jury's investigation of a crime or to
conceal the criminal conduct of his source or
evidence thereof."

Branzburg at 679-709; and

"The issue in these cases is whether requiring
newsmen to appear and testify before state or
federal grand juries abridges the freedom of
speech and press guaranteed by the First Amendment.
We hold that it does not."

Branzburg at 665.

These reporters are cooked, period. End of issue.



Edited to add: url hyperlink to findlaw's case as above: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=408&invol=665


.

[NYC]

6. That's because a crime is involved.

[peacebird]

9. why isn't Novak threatened with jail? HE released the info first....

[priller]

12. That's one of the enduring mysteries of this investigation

n/t

[happyslug]

16. Novak is protected under Fifth Amendment

i.e. The Right NOT to incriminate oneself. Novak can not be compelled to testify that he broke the law, thus the investigators are going after other people who had this information and did NOT release it (and thus did NOT break the law). The investigators want to know who released the information to Novak and the others.

[Just Me]

17. When Novak is charged with a conspiracy to commit a crime,...

,...I might accept that possibility. However, I haven't seen anything verifying that he has actually asserted the Fifth.

Have you?

btw,...can a witness assert the fifth before a grand jury?

[happyslug]

18. Yes, it is an absolute right

You can NEVER be compelled to provide TESTIMONY against yourself. Now the Court can demand you give Blood, fingerprints, DNA etc, but not testimony. This is where the investigators are looking at. Novak can plead the Fifth as long as he believes (and it can be wrongful belief) that the testimony may be used against him. In my practice I have had Judges and District Justices inform witnesses of their constitutional right NOT to testify if that testimony can be used against them in a criminal procedure (I practice Civil law, but sometime Criminal and Civil actions overlap).

My Point is if Novak is a target of the Grand Jury, he can not be compelled to testify. As to the other Newspaper reporters given that they DID NOT BREAK THE LAW and reveled a US Spy, they refusal to testify is NOT covered by the Fifth Amendment. This is the dispute, the reporters want to hide behind the First not the Fifth. The problem is the First does NOT give special rights to Reporters, it gives the right to Free Speech and the Press to EVERYONE not just reporters. Thus if you give a "Reporter" exception to the requirement to testify at a Grand Jury you are in effect giving that right NOT to testify to EVERYONE. The Courts have rejected that argument in the past and will again.

The First Amendment gives EVERYONE the Right to report the news and with the INTERNET that is possible. At the same time the Courts have always ruled you must testify to a grand jury if you have evidence (Given some limited exception, attorney-Client, Doctor-Patient, Penitent-Priest etc). The Courts will not expand that list unless Congress doe sit for them. Congress has not expanded that list, thus the reporters MUST testify.

One last note, given the right NOT to testify, most Investigators and Grand Juries will NOT call on the person who is the target of their Investigation. Why waste one's time questioning someone who can and should plead the Fifth. Thus Novak has not been questioned by the Grand Jury for he is a Target of that Grand Jury.

[Just Me]

20. So, is what you're asserting (Novak is a Grand Jury target) true?

Moreover, with respect to Miller's case, couldn't she assert the Fifth since her failure to report could arguably constitute a crime being either a conspirator or obstructionist to justice?

I'm not a criminal attorney,...so, maybe you could enlighten me.

:smoke:

[happyslug]

21. Look at the underlying crime

Which is REVEALING a Spy, Miller did NOT reveal the spy. She only admitted she knew of the story but did NOT publish it.

Remember KNOWING X is a CIA spy is NOT a crime, Being told by Y that X is a CIA spy is not criminal for the person being told X is a spy (It is criminal for Y). In the case of Miller someone (lets call the source Y) told her Plame was a CIA Spy. Miller did NOTHING with that information. Thus Miller did NOT break the law. On the other hand Y did. It is Y that is the real Criminal who along with Novak revealed a Spy's name.

Thus Miller can NOT plead the fifth for she committed no crime. Novak did REVEAL the name of Plame and a such can be held to have committed a Criminal Act. This is the Difference, Miller is NOT looking at any Jail time for her actions as a reporter (She may face Jail time for failing to comply with the request of the Grand Jury, but not for any crime regarding Plame). On the other hand Novak can face Jail time for his story, Jail time he may share with whoever told him that Plame was a spy.

My feel on the case is the Investgator is trying to find out WHO told Novak and Miller of Plame being a spy. Once the Investigator has that infromation he can have the Grand Jury indict both the peson who told Novak and Novak. There is some concern in going after Novak given he is a reporter, but the real target is the person who told Novak adn Miller knows that person's name as while as Novak.

[Just Me]

23. I tend to also think in terms of ulterior motives.

I understand your logic (although I believe Miller's knowledge of the criminal act and failure to report could be construed as some form of crime).

I speculate that there is a possibility both Novak and the criminal informant are being protected. Of course, I merely speculate this possibility and certainly do hope that your take is true.

[A Simple Game]

22. If I read your post right, Novak is in fact in a worse situation

because he has not been asked to testify?

I hope so, I can't stand that guy.

[0rganism]

30. Doesn't fly. They could easily offer him immunity for his testimony

Once immunity has been offered by the prosecution, a grand jury witness has no recourse to 5th amendment protection on the matter in question.

So unless they want to preserve the ability to later prosecute Novak as an accessory to (or full participant in) this particular crime, the motives remain unfathomable.

[Viking12]

27. but Dodd (R CT) is trying to hurry one through to protect the admin

[DeepModem Mom]

4. kick

[DeepModem Mom]

7. kick

[StaggerLee]

8. kick

:kick:

[Supersedeas]

10. Branzburg is the law...Media Law 101 - did Judy-the-Scrivener catch that

tidbit in school.

Or did she just save if for regurgitation on the test?

[sattahipdeep]

15. Floyd Abrams, cousin of Elliott Abrams

Floyd Abrams attorney who is representing Cooper and Miller :eyes:

Floyd Abrams, cousin of Elliott Abrams who holds the position of top adviser on
Israel-related matters in President George W. Bush's National Security Council.


Elliot Abrams

By William Bowles

05/11/03: (Information Clearing House) Unless you were around and
following events in the 1980s, especially Central American affairs
and later, the Iran-contra scandal, you probably won’t know who Elliot Abrams is.
More’s the pity too. As Reagan's Assistant Secretary of State for
Human Rights and Humanitarian Affairs he used to oversee US foreign
policy in Latin America, and was active in covering up some of the
worst atrocities committed by the US-sponsored Contras. According to
congressional records, under Abram's watch, the Contras "raped, tortured,
and killed unarmed civilians, including children," and that "groups of civilians,
including women and children, were burned, dismembered, blinded and beheaded."
http://www.informationclearinghouse.info/article3341.htm

(13) Elliott Abrams: pleaded guilty to withholding information from Congress;

(14) Caspar W. Weinberger: charged with four counts of false statements and perjury;
pardoned before trial by President Bush.

At the time President Bush pardoned Weinberger and Clarridge, he also pardoned George,
Fiers, Abrams, and McFarlane.

http://www.pbs.org/newshour/bb/media/july-dec04/reporter_12-8.html

[Shakespeare]

24. You know, I have a few relatives I can't stand--just being related...

...doesn't make you "just like them." I happen to be acquainted with Floyd Abrams, and think very, very highly of him. He's one of our true First Amendment warriors.

[sattahipdeep]

26. Tell me why

Why should I not be informed about the outing of CIA operative Valerie Plame,
and Karl Rove's role in that?

And how will losing my civil liberties guarantee me a future in a free society?

[TahitiNut]

28. The PROTECTION should be 'free speech' by the source ...

It's absofuckinglutely nuts to interpret our laws as protecting secrecy when the underlying concern is retaliation for whistle-blowing. Solve the underlying concern! Criminalize any retaliation for the speech but prosecute the 'outing' itself.

[talk hard]

29. Write to the NY Times @

[e-mail]

and tell 'em what you think of Judith Miller hiding behind journalistic privilege when she is in reality covering up a felony committed by the White House.

and while you're at it, tell 'em you think it sucks that they didn't even mention the forum John Conyers chaired discussing election "irregularities", reads fraud.

I encouraged them to do their goddamn job.

[sattahipdeep]

31. Ex-CIA agent says sacked for not faking Iraq WMD reports

WASHINGTON (AFP) -
A sacked CIA official has sued, alleging he
was fired for refusing to fake reports
supporting the White House position that
Iraq had weapons of mass destruction, local
media said.

http://www.turkishpress.com/world/news.asp?id=041210001734.39k5v65i.xml

Goss has also dismissed the efforts to find out who in the Bush
administration identified, and so outed, undercover CIA operative
Valerie Plame -- wife of former ambassador Joseph Wilson
who had embarrassed the administration over its Iraqi nuclear
claims -- to the press as "wild and unsubstantiated allegations,"
a position that will not reassure operatives at the Directorate
who can be and have been assassinated because of such leaks.

[sattahipdeep]

32. A gloomy assessment by the CIA's departing chief in Baghdad

Descending into chaos - Dec. 8, 2004
A gloomy assessment by the CIA's departing chief in Baghdad contradicts Bush's claim that
conditions in Iraq will improve after its election.

As station chief, the unnamed CIA official supervised more
than 300 operatives, the largest intelligence operation since the
Vietnam War, and their assessment carries authority. While the senior U.S. military
commander in Iraq, Gen. George Casey Jr., initially raised no objections to the CIA
assessment, the New York Times reported that the U.S. ambassador to Iraq, John
Negroponte, had filed a lengthy message of dissent in which he argued that the U.S. had
made considerable progress in controlling the insurgency.

http://www.salon.com/news/feature/2004/12/08/iraq/

Negroponte
So this is the man who is going to show the Iraqis the way toward democracy?

More likely, as the insurgency increases, this will be the man who will oversee and hush
up any brutal repression that may ensue.

http://www.progressive.org/webex04/wx042004.html

John Negroponte served as US ambassador to Honduras from 1981 to 1985. As
Ambassador in Tegucigalpa, he played a key role in supporting and supervising
the Nicaraguan Contra mercenaries who were based in Honduras. The cross
border Contra attacks into Nicaragua claimed some 50 000 civilian lives.

http://www.globalresearch.ca/articles/CHO404E.html

During the same period, Negroponte was instrumental in setting up the
Honduran military death squads, "operating with Washington support's,
assassinated hundreds of opponents of the US-backed regime." (See Bush
Nominee linked to Latin American Terrorism, by Bill Vann,

http://www.globalresearch.ca/articles/VAN111A.html

Special Ops Task Force Threatened Government Agents
Who Saw Detainee Abuse in Iraq, Documents Obtained by
ACLU Reveal
December 7, 2004

NEW YORK - Documents released today by the American Civil Liberties
Union reveal that a special operations task force in Iraq sought to silence
Defense Intelligence Agency personnel who observed abusive
interrogations and that the Department of Defense adopted questionable
interrogation techniques at Guantanamo over FBI objections.

"The more the government is forced to reveal, the more we learn that
individuals in U.S. custody, many of whom have not been accused of
wrongdoing, were tortured and abused," said ACLU Executive Director
Anthony D. Romero. "These documents tell a damning story of sanctioned
government abuse -- a story that the government has tried to hide and
may well come back to haunt our own troops captured in Iraq."

http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=17156&c=206