Tuesday, July 5, 2005

What Will the Reporter's Notes Reveal?

Surprisingly, Time, Inc. has decided to forego the reporter's privilege and provide its notes to a special prosecutor, notes that may provide information concerning an investigation into a leak of the name of a CIA agent.  This position is contrasted with the New York Times that has decided to remain silent and risk a possible contempt and jail order.

Background and commentary on this controversy can be found in this post. The New York Times discusses today the increased threat to journalists of government subpoenas.(here) MSNBC (AP) notes here that "[s]pecial counsel Patrick Fitzgerald, the U.S. attorney in Chicago, has been investigating who in the Bush administration" leaked this information. The matter proceeded through the courts, and a rehearing en banc was denied here. The consequences of such a leak, if the individual(s) is/are who committed this act are found, could involve the following criminal statute:

50 U.S.C. ยง 421. Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources.

(a) Disclosure of information by persons having or having had access to classified information that identifies covert agent

Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under Title 18 or imprisoned not more than ten years, or both.

(b) Disclosure of information by persons who learn identity of covert agents as result of having access to classified information

Whoever, as a result of having authorized access to classified information, learns the identity of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under Title 18 or imprisoned not more than five years, or both.

(c) Disclosure of information by persons in course of pattern of activities intended to identify and expose covert agents

Whoever, in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual's classified intelligence relationship to the United States, shall be fined under Title 18 or imprisoned not more than three years, or both.

(d) Imposition of consecutive sentences

A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.

(esp)

                                                                                                 

UPDATE (7/5): An AP story (here) states that special counsel Patrick Fitzgerald has requested that the court order Matthew Cooper to testify before the grand jury even though his notes have been turned over by Time.  Fitzpatrick also opposes the requests of Cooper and Judith Miller that they be permitted to serve the likely civil contempt by home detention. (ph)

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