Wed, Jan 24, 2007 page9

• Libby trial could end media vows of confidentiality

  A highly unusual case, with reporters in court testifying about their work, has undercut assumptions about journalistic behavior that have existed for decades

  • By Neil Lewis / NY TIMES NEWS SERVICE
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  As the perjury and obstruction of justice trial of I. Lewis Libby Jr. unfolds over the next few weeks, the ways in which the case has vastly reshaped relations between reporters and high government officials will be on vivid display.

  Most striking of all, a handful of reporters for major news organizations will testify for the prosecution.

  They will be asked to recount conversations they had in 2003 with Libby, then US Vice President Dick Cheney's chief of staff, that were undertaken with some understanding that they were confidential.

  The highly unusual spectacle of journalists giving testimony at a criminal trial about their reporting is a result of the intense investigation into the disclosure of the identity of a CIA operative. Previous leak investigations typically ended in failure as reporters were able to fend off prosecutors' efforts to delve into what they learned from government sources.

  But in trying to determine how Valerie Wilson, who was known by her maiden name, Valerie Plame, came to be identified as a CIA operative in a newspaper column in July 2003, the prosecutor, Patrick Fitzgerald, successfully pressed reporters to testify before a grand jury, threatening jail if they refused. In the case of one, Judith Miller, formerly of the New York Times, Fitzgerald, with the backing of the courts, succeeded in having her jailed for 85 days until she relented.

  Rodney Smolla, the dean of the University of Richmond Law School and an authority on the First Amendment, said the Libby investigation had made clear that any promise of confidentiality from a reporter now comes with an asterisk.

  A matter of law

  "This has undercut the assumptions that existed for several decades that a reporter's promise of confidentiality is not only sacrosanct as a matter of journalistic ethics but relatively secure as a matter of law," Smolla said. "Now it's clear that the legal system will try to break that promise, and the sources and reporter appear much more vulnerable, at least in the federal system, than was thought to be just a short time ago."

  There is no formal code that describes the rules of engagement for officials and reporters in Washington, but a less-than-neat system evolved over decades that allowed government sources to impart information to journalists without having their identities revealed publicly. Editors, hoping to be more accountable to the public, have tried in recent years to change those practices.

  Nothing may have shaken those ways of doing business and the underlying relationships as much as the Libby case.

  The impact in the workaday world is difficult to measure, as it is impossible to know of articles never written because officials decided not to risk becoming sources. Eve Burton, vice president of the Hearst Corp, said her company had refrained from publishing or broadcasting stories in recent months to avoid the risk of becoming embroiled in a subpoena battle that could lead to fines and jail terms for reporters.

  Another effect has been on how news organizations reconsider the pledges their journalists may make.

  Bill Keller, the executive editor of the New York Times, has suggested that reporters may sometimes wish to negotiate the conditions of confidentiality with a source.

  In a speech in October, Keller said such negotiations could go something like this: "I will keep your name out of the paper, and if I am subpoenaed as part of a leak investigation my paper will fight it. But if we lose in the courts I do not plan to go to jail or allow the paper to be fined into bankruptcy."

  Libby, who is known as "Scooter," is charged with lying to both a grand jury and FBI agents who were investigating the leak of Wilson's identity to journalists. The case began with a July 14, 2003, column by Robert Novak, saying that Wilson worked at the CIA and was married to Joseph Wilson, a former US ambassador who had days before accused the administration of distorting intelligence to help the case for going to war in Iraq.

  Under oath

  Libby had nothing to do with the leak to Novak, but he testified under oath that he had not disclosed information about Wilson to other journalists. Miller and Matthew Cooper of Time magazine told the grand jury that he did, in fact, talk about Wilson with them. Libby also testified that he learned of Wilson's identity from a third journalist, Tim Russert of NBC News, but Russert is expected to testify that that is false.

  Libby's lawyers are expected to argue that he did not tell those reporters about Wilson and that, even if he did, he remembered incorrectly what happened.

  Many people experienced in the capital game of source and reporter will understand the thesis Fitzgerald has put forward: that Libby expected that reporters would successfully resist cooperating with law enforcement officials and that his conversations with them would never be revealed.

  Fitzgerald has also said he may try to explore at trial the issue of whether waivers of confidentiality given by Libby to reporters in order to allow them to testify were genuine. Fitzgerald's goal would be to demonstrate that Libby was actually trying to hide information rather than have it disclosed.

  To that end, the trial may try to solve one of the case's mysteries: whether there was any hidden meaning to a note Libby wrote to Miller giving her permission to testify before the grand jury. In September 2005, Libby wrote to Miller saying that he had not spoken to reporters about Wilson and then relieving her of any journalistic obligation to keep their conversations confidential.

  Libby told Miller, who was in jail at the time for refusing to cooperate with the prosecutor, that she should testify, get out of jail and experience the autumnal delight of Colorado's aspens changing color. "Out West, where you vacation, the aspens will already be turning," wrote Libby. "They turn in clusters because their roots connect them."

  Was that phrase a simple attempt at a literary turn? Or was it a veiled plea for Miller to "turn" with him and back up Libby's account that he had not disclosed Wilson's identity to her?

  Before Miller went to jail, she dismissed the validity of an earlier waiver Libby had offered to all journalists. She asserted that such waivers from sitting government officials were inherently coerced.

  Miller wrote in the Times that after two months in jail she "owed it to herself" to clarify whether Libby's waiver was genuine. She authorized her lawyers to seek an explicit waiver from Libby, which he granted in a telephone conversation and the letter about aspens.

  To challenge the sincerity of that waiver, Fitzgerald would likely note that, when Miller eventually testified before the grand jury, she provided information that was used against Libby.

  If Miller testified truthfully to Libby's detriment, Fitzgerald may argue, then Libby must not have intended to encourage her to testify at all.
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