When to Give Up a Source

By Bill Saporito

For journalists, confidential sources can be as essential as ink. That's why so many were surprised last week when Norman Pearlstine, editor-in-chief of Time Inc., said he would reveal some confidential information about a big story. In a case involving TIME magazine White House correspondent Matthew Cooper, Pearlstine agreed to comply with a federal subpoena and surrender Cooper's notes and files relating to a story he had written that is part of an investigation into the disclosure of a CIA operative's identity. Time Inc. had appealed the case all the way to the Supreme Court, but when the court declined last week to hear the case, Pearlstine made the decision he calls "the most difficult I have made in more than 36 years in the news business."

Many in the media world quickly criticized the move as a capitulation to government pressure that could scare off future sources. "I can't think of a time," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, "when a news organization has done something like this." Tom Rosenstiel, director of the Project for Excellence in Journalism, said Time Inc.'s decision signals that sources--and reporters--will now have to worry about media companies in addition to government prosecutors. "How will sources believe that journalists can keep their word?" he asked. But others pointed out that Time Inc. had run out of venues to fight the case. "Time Inc. fought this as hard as anyone could, with great lawyers, at great expense," said Newton Minow, former FCC chairman and professor emeritus at Northwestern University School of Law. "Once that happens, you have to obey the law."

The Cooper case evolved from an investigation by special counsel Patrick Fitzgerald, who set out to identify the unnamed Bush Administration sources cited by journalist Robert Novak in a July 2003 column that outed CIA officer Valerie Plame. Cooper subsequently wrote a piece for TIME's website saying that "some government officials" had provided him with information similar to what Novak had reported. Cooper suggested in his article that the sources were seeking to discredit Plame's husband, former Ambassador Joseph Wilson, who found evidence contradicting the Administration's prewar claim that Iraq had sought uranium in Africa for nuclear weapons. Judith Miller of the New York Times may have spoken to the same sources, though she didn't publish anything. (Nonetheless, she, like Cooper, could face jail time for declining to reveal her contacts.) The New York Times criticized Time Inc.'s decision to hand over material--publisher Arthur Sulzberger Jr. said he was "deeply disappointed"--and said it backed Miller's refusal to testify. Cooper was stoically diplomatic: "There's honor in obeying an order backed by the Supreme Court. There's honor in civil disobedience. I wish Time Inc. had tried to hold out longer against handing over papers that identified my sources. But there's surely principle in both decisions."

After Time Inc. agreed to turn over the requested materials to Fitzgerald's office, speculation quickly surfaced over whose names would be identified. Much of that focused on Karl Rove, senior adviser to President George W. Bush. Rove's lawyer, Robert Luskin, said Cooper called Rove during the week before Novak's story appeared but declined to say what they discussed. Luskin said Rove "has never knowingly disclosed classified information." The lawyer said he has received repeated assurances from Fitzgerald's office that Rove is not a target in the case.

The investigation has been bizarre from the start. For one thing, it's still unclear whether any laws were broken in the Plame revelation. (Deliberately disclosing an operative's name is illegal but only if the government is actively trying to conceal its relationship with that person.) Yet Fitzgerald's wide-ranging investigation has involved subpoenas of at least five journalists, and several, including Cooper, NBC's Tim Russert and the Washington Post's Walter Pincus, have testified on at least a limited basis. The courts have repeatedly denied Cooper and Miller privilege to protect their sources. After the Supreme Court refused to hear the case, Pearlstine says he concluded that Time Inc. had an obligation to follow the law and obey the ruling. "An organization that prides itself on pointing its finger at people shouldn't be breaking the law itself," he said.

Some pundits have countered that an act of civil disobedience by Time Inc.--declining to follow an "unjust" ruling while being prepared to suffer the legal consequence--wouldn't be the same as placing oneself above the law. In Pearlstine's view, "when the courts rule that a citizen's obligation to testify before a grand jury takes precedence over the press's First Amendment right, to me, going against that finding would put us above the law." Others have questioned whether Time Inc. was putting corporate priorities over journalistic ones. Continued refusal to cooperate with the judge would have meant increased fines (well above the current $1,000-a-day penalty). Pearlstine vehemently dismissed the idea of any such calculation. "I am solely responsible for this decision, and the threat of fines never figured into my thinking," he said. He added that he did not consult with Time Inc. CEO Ann Moore or Richard Parsons, CEO of Time Warner, Time Inc.'s parent.

In handing over the requested materials, Pearlstine and Time Inc. made the argument that there was now no need for Cooper to testify because Cooper's files contain at least some of the information Fitzgerald has been seeking. In the interim, Cooper and Miller have asked Judge Thomas F. Hogan to sentence them, if it comes to that, to home confinement or, barring that, to federal prison camps, as opposed to maximum-security prisons or the notorious Washington jails.

Will Time Inc.'s actions alter the rules of journalism? Some think so. "This is going to be open season on journalists," says Dalglish. "Litigators are out there thinking, Why not subpoena them? I'm probably going to win." In Pearlstine's view, Time Inc.'s decision is a narrowly framed one that applies only to a case that involves a federal grand jury with access to secret testimony about a national-security issue. He says he still believes in the value of confidential sources--and fighting to keep them that way as far as the law allows.

Another way in which this case differs from a typical one is that unlike in a traditional whistle-blower scenario in which a source is being protected from potential retaliation, the source or sources being protected in the Cooper case may well have been retaliating against Wilson. "This was leading into a blind alley," says Jim Wheaton, who teaches media law at Stanford University and the University of California, Berkeley. "If the Supreme Court had taken the case, it was likely to say there's no privilege, period." Jay Rosen, chairman of New York University's journalism department, understood the logic of Time Inc.'s ultimate decision. "I find it hard to get worked up into the same outrage as others about the Time decision, which seems to me to be a practical decision," he told the Wall Street Journal.

In the future, the best hope for journalists may be a federal shield law, now in Congress, which would let reporters keep sources confidential under any circumstances. Thirty-one states and the District of Columbia have shield laws, while 18 additional states have similar protections. A federal law has been proposed by Senator Richard Lugar and Representative Mike Pence of Indiana, who have signed up dozens of co-sponsors. It's not that legislators love the media. But when it comes to advancing their politics, legislators can be world-class leakers and could have as much to lose as journalists. --With reporting by Mark Thompson and Viveca Novak/Washington and Nathan Thornburgh/New York

With reporting by Mark Thompson, Viveca Novak/Washington, Nathan Thornburgh/New York