The New York Times > Washington > 2 Reporters Suffer Another Court Setback

The New York Times > Washington > 2 Reporters Suffer Another Court Setback: 2 Reporters Suffer Another Court Setback
By ADAM LIPTAK

Two reporters facing up to 18 months in jail for refusing to testify about their sources lost another round in the courts yesterday. The reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, now have only one appeal left, to the United States Supreme Court.

The decision, by the full federal appeals court in Washington, declined to reconsider a unanimous decision of a three-judge panel of the court.

The earlier decision, in February, required the reporters to testify about conversations they may have had with government officials concerning Valerie Plame, an undercover C.I.A. agent whose identity was first disclosed by Robert Novak, the syndicated columnist.

Seven judges participated in yesterday's decision, which noted only that a majority of the court's active judges had not voted in favor of a rehearing. Two active judges did not participate, for unexplained reasons. One judge, David S. Tatel, published an explanatory concurrence. None of the judges noted a dissent.

Speaking to the Newspaper Association of America in San Francisco yesterday, Arthur Sulzberger Jr., the publisher of The Times, emphasized the importance of allowing reporters to keep their promises to confidential sources.

"This is not a New York Times or a Time magazine issue," Mr. Sulzberger said. "What's at stake here is journalism at the grass-roots level."

The two reporters have remained free while they pursue their cases in the appeals court. Under the usual procedural rules, they could face jail as soon as a week from now, when the appeals court will issue its mandate and return jurisdiction in the case to the trial court.

But legal experts say the reporters may try to make a deal with the special prosecutor in the case, Patrick J. Fitzgerald, or ask one of the courts involved to issue a stay. In exchange for their continued freedom, the reporters may agree to move quickly enough for the Supreme Court to be able to decide whether to hear the case before its summer recess.

Mr. Fitzgerald has consistently urged the courts to take quick action, adding in a recent filing that his investigation into the disclosure of Ms. Plame's identity is all but complete. A spokesman for Mr. Fitzgerald declined to comment yesterday.

Judge Thomas F. Hogan, the chief judge of the Federal District Court in Washington, ordered the reporters jailed in October unless they agreed to testify. Judge Hogan said a 1972 decision of the Supreme Court, Branzburg v. Hayes, provided reporters with no First Amendment protection when grand juries sought their sources.

In a speech in Montana, Judge Hogan suggested last week that he expected the Supreme Court to hear the case, according to reports in the local newspapers there.

In his concurrence, Judge Tatel, who also participated in the February decision, suggested yesterday that the reporters' arguments were best addressed to the Supreme Court.

"Only the Supreme Court can limit or distinguish Branzburg," Judge Tatel wrote.

But Judge Tatel conceded that decisions of his own court's interpreting Branzburg were "somewhat conflicted." Other federal appeals courts, too, have read Branzburg in various ways, and the Supreme Court often accepts cases to resolve conflicts among federal appeals courts.

"The courts are all over the lot," said Theodore J. Boutrous Jr., a Los Angeles lawyer who filed a brief supporting the reporters on behalf of 25 news organizations. "This case has nationwide implications, and given what's at stake here for the public - not just the journalists - it seems like an ideal case for the court to take."

Judge Tatel also defended much of the secrecy attached to the case, including his decision to redact eight pages that were part of his concurrence in February, which presumably set out grand jury evidence supporting the need for the reporters' testimony. Lawyers involved in the case have speculated that the pages described Mr. Novak's mysterious role in the matter, and they have argued that the secrecy that has permeated the case violated the reporters' due process rights.

Judge Tatel disagreed.

"Telling one grand jury witness what another has said," he wrote, "not only risks tainting the later testimony (not to mention enabling perjury or collusion), but may also embarrass or even endanger witnesses, as well as tarnish the reputations of suspects whom the grand jury ultimately declines to indict."

Katharine Q. Seelye contributed reporting for this article.