Judge Defends Decision to Jail Miller

Fri Apr 28, 4:55 PM ET

ANNAPOLIS, Md. - The federal judge who jailed a former New York Times reporter for refusing to name her source during the CIA leak investigation defended his decision Friday.

Thomas F. Hogan, chief judge of Washington's federal district court, told a meeting of the Maryland-Delaware-D.C. Press Association that he made the right call when he ruled there was no First Amendment protection for reporters to keep their sources confidential, especially in criminal matters.

The case of reporter Judith Miller began as a typical Washington political story as the White House tried to push back against critics in a brewing scandal, Hogan told the group.

"It was the perfect storm," he said, of Washington politics, the media and the law.

In 2003, former Ambassador Joseph Wilson accused the Bush administration of twisting intelligence about Iraq's efforts to buy yellowcake uranium from Niger to justify going to war.

"Blood was spreading in the water," Hogan said. "The sharks were gathering. It's typical Washington politics, except that this involved the commission of a crime."

While the White House sought to deny Wilson's accusations, the identity of his wife - CIA officer Valerie Plame - was leaked to reporters, apparently in violation of a law designed to protect covert operatives.

I. Lewis "Scooter" Libby, 55, Vice President Cheney's former top aide, has been charged with perjury and obstruction of justice for lying to FBI agents and a federal grand jury about when he learned of Plame's identity and when he subsequently discussed it to reporters.

Hogan, who oversees grand juries, got involved in the CIA leak investigation when Special Counsel Patrick Fitzgerald sought to compel several reporters to reveal their sources and what they were told about Plame.

Fitzgerald tried to get evidence he needed elsewhere, Hogan said, describing the prosecutor as "dogged" and "one of the best I have seen."

Only Miller, then working for the Times, and Time magazine reporter Matthew Cooper refused to cooperate with Fitzgerald, saying they did not believe that the waivers of their confidentiality agreements with sources were granted voluntarily.

Eventually, Cooper's source - White House adviser Karl Rove - provided a waiver that satisfied the reporter. But Miller wasn't, and she refused to name her source, who turned out to be Libby.

Hogan, an appointee of President Reagan, said he rejected imposing a fine on Miller because he did not believe anything other than jail would get her to obey his order to testify. She spent 85 days behind bars before Libby gave her a waiver she thought was sufficient.

Miller wasn't an innocent bystander, Hogan said. "She was an actor in the commission of a crime," he said. "She was part of the transfer of information that was a crime."

The judge said he did not enjoy sending Miller to jail. But he said the law is clear: Reporters do not have a special privilege under the First Amendment to keep their sources secret, especially when a crime has been committed.

Hogan predicted that the "clash" between the courts and reporters isn't going to end any time soon, especially in Washington. Federal judges are being asked to allow parties in civil and criminal cases to force reporters to reveal their sources.

Libby's lawyers have issued several subpoenas to reporters and news organizations seeking access to notes, draft articles and e-mails discussing sources. In a civil case, a former Los Alamos scientist wants to know who leaked information during an espionage investigation that he says ruined his life.

Hogan said he doesn't believe the media have support for a federal shield law in the Senate. Nor does the media have much support in the courts, he said. He said he had heard that not one Supreme Court justice voted to hear Miller's appeal.

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