Federal court rejects appeal by journalists facing jail time

2 reporters defied order to testify about sources

last option is high court


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 U.S. 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 CIA 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," 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.

Fitzgerald has consistently urged the courts to take quick action, adding in a recent filing that his investigation into the disclosure of Plame's identity is all but complete.

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

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

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