The Cost of Keeping Mum

Leak investigations in Washington usually fizzle and die within days of being launched. But one leak probe, now in its 14th month, is rapidly approaching a showdown. Special counsel Patrick Fitzgerald has ordered two reporters, including TIME White House correspondent Matthew Cooper, to tell a grand jury who might have disclosed to them the identity of a covert CIA officer during a tangled political dustup in the summer of 2003. TIME sought to quash the subpoena through most of 2004, but last week a federal appeals court ruled that Cooper and Judith Miller of the New York Times must testify or face civil contempt penalties, which usually means jail. Both TIME and the New York Times will appeal the ruling, going all the way to the Supreme Court if necessary.

Fitzgerald's probe was launched after syndicated columnist Robert Novak revealed the identity of Valerie Plame, a covert CIA officer who is the wife of Joseph Wilson, a retired U.S. diplomat and an early postwar critic of the President's prewar justification for the Iraq invasion. Wilson figures in the story because he made a secret trip to Niger in 2002 at the CIA's request to determine if that country had sold a uranium ore known as yellowcake to Iraq, a key piece of evidence for the Administration's claims that Saddam Hussein had weapons of mass destruction. Wilson informed the CIA upon his return that he had found no evidence of an Iraqi purchase, yet the Administration continued to make the charge right up until the beginning of the war. After Wilson revealed his tale in July 2003, Plame's name may have been leaked in retaliation. TIME's online story, written chiefly by Cooper, appeared three days after Novak's column, and it wasn't long after that the CIA asked the Justice Department to investigate the leak. A 1982 law made it illegal for government officials to disclose the identity of a covert agent.

The case pits two centuries-old truth-seeking institutions--the press and the grand jury--against each other in a battle with political and national security implications. Both Cooper and Miller are prepared to go to jail rather than reveal their sources' identities. Cooper, 42, has covered politics for more than a decade and has served as deputy chief of TIME's Washington bureau. "Protecting confidences is something that society grants to pastors, doctors, spouses, lawyers, even social workers," notes Cooper. "We believe journalists have a similar privilege." Miller, 57 and a 28-year veteran of the Times, argues that confidential sources are essential to a free press in an open society. "People with information about waste, fraud, abuses, dissenting assessments and yes, even gripes, must feel that we will protect them if they trust us with sensitive information. That's why I cannot disclose their identities."

But this logic has so far failed to convince the courts, which have found that a 1972 Supreme Court decision requires reporters to put subpoenas above sources. "There is no First Amendment privilege protecting journalists from appearing before a grand jury ... regardless of any confidence promised by the reporter to any source," the appeals court ruled last week. "The Highest Court has spoken and never revisited the question." Soon, it may get a second chance. o