A Case for the Supreme Court

By NORMAN PEARLSTINE/EDITOR-IN-CHIEF

As a rule, we at Time Inc., publisher of this and many other magazines, believe that we should report the news instead of making it. We also believe in the rule of law, and we do not believe journalists, ours or anyone else's, should be held above it.

Sometimes, however, staying out of the news becomes impossible. And sometimes seeking a clarification of our nation's law from its highest court becomes an imperative. We find ourselves in just such a position with TIME magazine and its White House correspondent Matthew Cooper, both of whom have come under extraordinary government pressure to cooperate in an investigation in ways that we believe are unwarranted and potentially damaging to the free flow of information that leads to accountability in our democracy. As this controversy unfolds, we want you to understand the story behind that story.

You may be aware that Cooper, along with Judith Miller of the New York Times, faces the very real possibility of going to jail for refusing to disclose confidential sources to a federal grand jury investigating who revealed the identity of CIA operative Valerie Plame, the wife of former U.S. ambassador Joseph Wilson. Ironically, neither Cooper nor Miller actually outed Plame. That revelation was made almost two years ago by syndicated columnist Robert Novak commenting on Wilson's allegations that the Bush Administration, which had sent him to Niger to investigate claims of Iraq's attempt to buy weapons-grade uranium there, had ignored his finding that there was no credible evidence of such an attempt. Novak said "two senior Administration officials" had told him the CIA had dispatched Wilson at the suggestion of his wife, whom Novak revealed as Plame, "an agency operative on weapons of mass destruction."

After Novak's revelation, TIME's Cooper co-authored an article on the magazine's website, saying "some government officials" had told him basically the same thing, and the piece went on to suggest potential misconduct by those officials, who were perhaps seeking to discredit Wilson.

After some uproar, the Department of Justice appointed a special counsel to determine whether those who leaked Plame's role and her name violated a federal law barring the unauthorized disclosure of a covert operative's identity. The special counsel impaneled a federal grand jury and subpoenaed Cooper and Time Inc., demanding that we disclose our sources. When we declined to do so, a federal district judge in Washington held Cooper and us in contempt, relying on secret evidence submitted by the prosecutor. The judge ordered that Cooper be jailed for up to 18 months and that Time Inc. be fined $1,000 a day until we complied with the subpoenas and revealed our confidential sources. The district court's decision was upheld on appeal, with two of the three judges noting that this case presented important questions that could be resolved only by the Supreme Court.

We don't risk jail or fines lightly. It is our editorial policy to identify sources by name whenever possible. But sometimes we can obtain information only by promising confidentiality to a source, because many persons with important information won't speak to the press unless they are assured anonymity. Information given in confidence is especially valuable when it contradicts or undermines public positions asserted by governments or powerful individuals or corporations. Without confidential sourcing, the public would never have learned the details of many situations vital to its interests, from Watergate to Enron to Abu Ghraib.

Thus, Time Inc. last week took the unusual step of asking the U.S. Supreme Court to review lower-court decisions and rule that Matt Cooper may not be jailed and Time Inc. may not be fined for refusing to disclose confidential sources to a federal grand jury. Our petition argues that much has changed in the 33 years since the Supreme Court last looked at this issue and ruled against several reporters in a 5-to-4 decision that resulted in murky law.

Furthermore, the District of Columbia and 49 states now protect confidential sources. We think those protections strongly support our contention that the First Amendment (which protects freedom of the press) and common law should be held to extend the reporter's privilege to federal cases.

We believe the Supreme Court should recognize a reporter's privilege under federal rules of evidence adopted since 1972--rules that have led federal courts to recognize a psychotherapist-patient privilege, a spousal privilege, a cleric-communicant privilege and many others.

We argue further that jailing or fining a witness based on secret evidence submitted by the prosecutor violates a constitutional right to due process. The Supreme Court held last year that accused enemy combatants have a right to confront the evidence against them. We cannot understand how journalists doing their jobs should be denied that same basic right.

We believe we must protect our sources when we grant them confidentiality, an obligation we take seriously. We also believe we must resist government coercion. Put simply, the issues at stake are crucial to our ability to report the news and inform the public. We hope the Supreme Court will hear our case and rule in our favor. As it said many years ago, freedom of the press was established "not for the benefit of the press so much as for the benefit of all of us."