Sign up for the daily CJR newsletter.

The forces unleashed by Robert Novak’s column unveiling the secret agent Valerie Plame have shaken the White House, helped destroy any pretense of a reporter’s privilege in federal criminal cases, and obliged at least ten Washington journalists, including me, to confront a new, insidious tactic that has altered the balance of power between journalist and leak investigator. But it is interesting to remember that when Novak’s column came out in July 2003, it failed to create much of a stir in the equatorial-strength humidity of a Washington summer.

Perhaps it was because Novak mentioned Plame only in passing in the sixth paragraph. Perhaps the aging warrior of the Right just does not have the impact he used to. But if the aim was to discredit Plame’s husband, former ambassador Joseph C. Wilson, or, as Wilson alleges, intimidate others from calling attention to government misstatements, as Wilson had in a July 6 op-ed in The New York Times, the arrow fell short.

Administration officials apparently tried to goose the leak by phoning other reporters and focusing attention on it, according to Wilson, who says that after the column appeared he started getting calls from reporters who had been called by the White House. Those efforts also failed.

Other than Time, which ran a piece on its Web site three days later by its new White House correspondent, Matthew Cooper, that said its own “government officials” (now known to be Karl Rove and I. Lewis “Scooter” Libby) had talked to the magazine about Plame, it was primarily liberal Bush administration critics like David Corn of The Nation and Paul Krugman of The New York Times who raised questions about the outing of a CIA agent.

In his Times op-ed, Wilson said the Bush administration had “twisted” information from his 2002 trip to Niger in order to exaggerate Iraq’s nuclear threat. Novak’s column said, “according to administration officials,” that the Niger trip had been set in motion by Wilson’s wife, a CIA “Agency operative.” When I read the column I wondered whether Plame was working undercover. So, along with Newsday’s Knut Royce, known for his sources in the intelligence community, I started making inquiries.

A week later we wrote a story quoting “intelligence officials” as saying that Plame did indeed work undercover at the CIA, on weapons of mass destruction, raising the possibility that the disclosure to Novak broke the law. Novak himself volunteered something interesting when we reached him. “I didn’t dig it out, it was given to me.” His sources, he said, “thought it was significant; they gave me the name and I used it.”

Our story was the first to establish that Plame was undercover. In fact not only was she working for the secret “D. O.” or Directorate of Operations at agency headquarters in Langley, Virginia, but she was also still in transition from an even deeper underground mission as a “NOC” for Nonofficial Cover, posing as a businesswoman during agency-sponsored trips to Europe. The day after our story there were calls for an investigation by Democrats, and White House press secretary Scott McClellan vigorously asserted that “That is not the way this White House operates.” But the matter still was not on most editors’ agendas.

In late September MSNBC and CBS reported that the CIA had asked the Justice Department to investigate the security breach. Such requests are routine and almost never lead to serious investigations. In a front-page story on Sunday, September 28, The Washington Post led with the preliminary Justice Department inquiry. But the real news was down in the fifth paragraph:

Yesterday, a senior administration official said that before Novak’s column ran, two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson’s wife . . . .

“Clearly, it was meant purely and simply for revenge,” the senior official said of the alleged leak.

This story finally set off the furor that led Attorney General John Ashcroft to recuse himself and his deputy, James Comey, and to appoint the tough-minded Patrick Fitzgerald to investigate the leak. Two days after the Post story, the Justice Department told the White House that it was conducting a full formal investigation of the Plame outing, and ordered that all White House staff members preserve documents relating to conversations with Novak, Royce, and me. (Sources told us that the CIA had referred not only Novak’s column but our Newsday story to the Justice Department for investigation because we, too, had revealed new classified information — that Plame was working undercover.) Subsequently the document requests relating to the three of us were sent to the CIA and top officials at the Pentagon, as well as hundreds of senior officials at the State Department, where I cover Middle East policy. This would certainly improve my name recognition, but it was also rather chilling to sources I already had.

Newsday decided that Royce and I should no longer cover the story, since we were now part of it. I play a dual role as reporter and editor, and I had to withdraw from any editing involvement as well. So Royce and I could no longer work the story we had been among the first to recognize. We were thus left to watch from the sidelines as the story grew, and to reflect on what it tells us about the sobering changes over the last decade in the standing of the press in America.

Roughly two months after he empaneled a grand jury in Washington in December 2003, Patrick Fitzgerald called Newsday saying he wanted to talk to us. So far as I know, we were the first reporters he contacted, with the possible exception of Novak, whose interactions with Fitzgerald are still unknown.

Don’t worry, Fitzgerald assured us, he was not asking us to name our sources. He simply wanted some information about our discussions with the sources. Oh.

When it was announced in January that Fitzgerald would ask officials who could have talked to reporters to sign documents waiving their right to confidentiality, I scoffed. Surely no reporter would take such a document seriously. It seemed clear that these waivers were coerced, that they would not have been signed freely. The whole thing seemed like a joke.

But not to our lawyers. Fitzgerald’s call and subsequent follow-ups set off an anguished conversation within the paper about our rights under the First Amendment versus our responsibilities in a criminal case involving national security and the White House. Raymond Jansen, then Newsday’s publisher, wanted us to do our best to cooperate without violating fundamental principles.

In our case, Fitzgerald intimated that he might have a waiver from one or more of our sources. These exploratory conversations between a prosecutor and news organization usually involve quite a bit of shadow boxing. Neither side wants to give too much away, so things tend to be discussed in theoretical terms. But my impression was that Fitzgerald may have talked to or planned to talk to someone who had admitted talking to us. It seemed likely to us, however, that that person would deny having disclosed that Plame was undercover.

What Fitzgerald wanted us to do, among other things, was to differentiate between Source A, B, or C. Without giving up any names, would we simply outline which source had said what in our story?

To Royce and me, who have sixty-six years of journalism experience between us, this was out of the question. For one thing, it seemed that the waivers were not freely given and were therefore worthless. It was clear that a refusal to sign would lead to dismissal. We would have to talk personally to our sources and have them assure us convincingly they wanted us to talk. But more fundamentally, why would we want to do anything to help anyone track down our sources? Even if Source A did want us to talk, would not our participation help lead Fitzgerald to Source B? And finally, to ask a source to release us from a promise of anonymity may be, in a leak investigation, to ask for a favor he or she can’t refuse. A negative answer might be construed as an obstruction of justice.

The fact that this affair was not so simple to everyone involved, including Fitzgerald, was a testament to how much things have changed since the last time I was the subject of a leak investigation. In 1991 I was the first to report, followed closely by Nina Totenberg of National Public Radio, that Anita Hill had accused the Supreme Court nominee Clarence Thomas of sexual harassment, creating a whirlwind. The Senate voted to confirm Thomas and then to hire a special counsel, Peter Fleming, to investigate who in the Senate gave confidential information to Totenberg and me.

We were subpoenaed to appear before the special counsel, and Newsday and NPR were separately subpoenaed to produce notes and other documents. My lawyers at the time, Robert Warren and Theodore Olson, took an uncompromising stand. I knew I would not name any names, but I worried that if I testified about, say, the timeline of my reporting, I might give the special counsel some crucial information.

We decided that I would testify to affirm the truth of what I had written and said later in public, but nothing more. For four hours, I kept repeating my assertion that the First Amendment protected me from divulging even the most ridiculously petty details. Totenberg would take a similar stance.

During this time, newspapers across the country championed our First Amendment cause in editorials and news stories. The television networks interviewed us sympathetically. The issue became a First Amendment cause célèbre. Eventually, the Senate could not take the heat and refused to enforce its own subpoenas. My source testified that he or she had not been the one to tell me or Totenberg about Anita Hill, and later discreetly thanked me for my protection.

Like every other reporter’s-privilege battle in federal courts, our brief in the Anita Hill case relied on Branzburg v. Hayes, the now thirty-four-year-old Supreme Court case, which actually was decided against the three reporters involved by a vote of five to four. But one of the justices in the majority, Lewis Powell, wrote a separate concurring opinion saying vaguely that he thought there were some limitations on when a reporter could be forced to testify. Since then, countless legal briefs have rested on the minority in the case and on Powell’s opinion.

But in the twelve years between the Anita Hill case and Plame, the press’s convenient theory that Justice Powell’s concurrence granted us some rights has lost considerable ground. We were mindful of this slippage as we debated what to do about Fitzgerald. But Royce and I told our editors at Newsday that we would become pariahs in Washington if we agreed to testify — that no other Washington reporter would ever do so. Newsday backed us up, and told Fitzgerald in mid-April that we would not help in any way. He threatened a subpoena that for some reason never came.

Of course, we were dead wrong about what the other reporters would do. But each reporter who has testified in the case has faced different circumstances.

Glenn Kessler, a State Department reporter for The Washington Post (and a friend of mine), agreed to be interviewed by Fitzgerald last June about conversations he had with Libby the previous July. Kessler said in a statement that he testified because Libby wanted him to, and that he told Fitzgerald that Libby had not mentioned Wilson or Plame.

With somewhat more difficulty Kessler’s colleague, Walter Pincus, eventually reached a deal with Fitzgerald. (His source did not release Pincus from his promise of confidentiality, but eventually revealed himself to Fitzgerald.) Tim Russert of NBC reached a deal that limited the scope of the questions.

That left Cooper, the primary author of Time’s online follow-up to Novak’s column, and Judith Miller of The New York Times, who clearly attracted Fitzgerald’s interest when he learned of meetings between Miller and Libby around the time of the leak.

We are all too familiar with what happened next. In February a three-judge-panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled unanimously that Branzburg did not protect Cooper and Miller in a criminal case, another nail in the coffin for reporters’ rights in federal courts. On June 30, Time magazine did what until that point was unthinkable, handing over Cooper’s notes and e-mails to Fitzgerald, over Cooper’s objection. Fitzgerald now knew that Cooper’s source was none other than Karl Rove. Cooper agreed to testify a week later after a last-minute call from his source freeing him. That left Judy Miller.

I was reporting in southern Iraq in July and largely out of touch with what was happening in Washington, though I knew that Miller went to jail on July 6. Even though her source — now known to be Libby — had signed a waiver, she said that she was not convinced that he had done so freely. Miller and the Times had taken exactly the same stand that Royce and I and, ultimately, Newsday had taken the previous year.

When I returned from Iraq in early August I was dumbfounded at the lack of attention she was getting. A national reporter was in jail for the first time in years, and, apart from the occasional editorial in the Times and a persistent cry for help from Lou Dobbs of CNN, there was almost nothing in the press.

Where was the outrage? What happened to the First Amendment lobby, so active in the Anita Hill case? What had changed?

Branzburg has been slipping away as an underpinning for our constitutional claim, of course. And underneath the legal argument is a familiar litany of economic, cultural, and political factors that have eroded the standing of the press perhaps more than we realize.

But I think the biggest difference in this case may lie in who Miller is, and who her sources are. And I think that’s a shame.

The journalistic community confused its understandable concern about Miller’s reporting and methods with her First Amendment cause. Not only do we not get to pick our standard bearer in a court of law, but we cannot distinguish between sources we like and those we do not. Some complained that Miller’s sources weren’t “whistleblowers”; they were wrongdoers who ratted out Valerie Plame. And did it perhaps matter that they were Republicans, the dreaded neocons no less?

I asked Floyd Abrams, who represented Miller, the Times, and, initially, Time magazine, why the atmosphere is so different now than during the Anita Hill investigation, in which he also fought. Abrams has a dog in this fight, of course, but he is still the dean of the First Amendment lawyers. He spoke of a press that has lost some of its sense of mission. And he spoke of politics. “Some journalists think the wrong people are getting protection,” he said. “That’s the most dangerous thing of all. Worse than the changes in the law, worse than grand juries going after journalists, is the image of some journalists making such decisions based on a political rather than a journalistic basis. Certainly a lot of the criticism of Judy Miller within the journalistic community is at its core political. There is an extraordinary animus. It’s very hard for me to believe that animus would exist if she were protecting different people in a different administration with different views of the war in Iraq.”

So how badly has what we might now call the Judy Miller case damaged the First Amendment? For one thing, there is now no protection for journalists in federal criminal cases in Washington and many other areas of the country. In civil cases, where the balancing act of constitutional needs is different because lawsuits are considered less compelling than law enforcement, rulings in federal courts have been less stacked against the press. Yet the same federal appeals court that ruled against Miller and Cooper refused in November to block a court order that four journalists must testify in the Wen Ho Lee civil case. (Lee, who was suspected of stealing nuclear secrets for China but later largely exonerated, is suing government agencies for allegedly leaking fake information about him. The four reporters, James Risen of The New York Times, Robert Drogin of the Los Angeles Times, H. Joseph Hebert of The Associated Press and Pierre Thomas of ABC, as well as a fifth, Walter Pincus of the Post, have been held in contempt of court and seem headed for the same anguished decision made by Cooper and Miller.)

In a rare though not yet final victory for the press, a federal district court judge in New York ruled last February 24 that there is a limited reporter’s privilege in criminal cases. The legal combatants were none other than Judy Miller and Patrick Fitzgerald. In his more normal role as U.S. attorney in Chicago, Fitzgerald is investigating with another grand jury who in the government may have told Miller about impending government actions against two Islamic charities in Chicago. Judge Robert Sweet blocked his attempt to obtain Miller’s phone records.

But meanwhile, even the original case involving Wilson and Plame is still fraught with danger for the press, as Fitzgerald continues to plough through the ranks of Washington journalists, now including Bob Woodward of The Washington Post and Viveca Novak of Time. All of the journalists who have testified — mostly under agreements restricting their testimony to very specific issues — are still in jeopardy. If the Libby case goes to trial, Libby’s lawyers are not bound by such agreements.

The prosecutor seems to have had the last word about the First Amendment, at least for now. “Journalists are not entitled to promise complete confidentiality — no one in America is,” he told Thomas F. Hogan, chief judge of the U.S. District Court for the District of Columbia. Hogan agreed. Of course, we never did have the right to offer complete confidentiality in every circumstance. But as a result of this case and others in the pipeline, the question now is, Can we honestly promise our sources anything?

To read the articles in the January/February 2006 issue, click here.

Has America ever needed a media defender more than now? Help us by joining CJR today.