Advocates Concerned About a Reporter’s Court Appearance

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A federal judge in California who has ordered a prominent reporter to divulge his confidential sources for an article about a spying investigation is now planning unusual and potentially open-ended questioning of the journalist’s reporting techniques, prompting concern from First Amendment advocates.

In May, Judge Cormac Carney, who sits in Orange County, ordered a national security reporter for the Washington Times, William Gertz, to appear in court and identify his sources for an article about planned charges in a case involving suspected espionage on behalf of China. The judge said the articles appeared to disclose secret grand jury information.

Lawyers for Mr. Gertz moved to quash the subpoena, arguing that no protected grand jury information was disclosed and that forcing the reporter to give up his sources could interfere with his ability to gather news. In response, Judge Carney said he plans to go forward with the hearing next week and wants to hear directly from the journalist about why confidential sources are essential to his reporting.

“The Court gathers from Mr. Gertz’s brief in support of his motion to quash that he may be unwilling to disclose the identity of the source(s),” the judge wrote in an order filed Monday. “Regardless of whether Mr. Gertz discloses his sources, the Court expects that Mr. Gertz will be prepared to testify regarding the newsworthiness of this case and, more particularly, the reasons why maintaining the confidentiality of his sources is critical to his ability to engage in investigative reporting.”

A lawyer for Mr. Gertz, Charles Leeper, said the reporter would appear at next week’s hearing. The attorney said he was not concerned that the judge’s inquiry would become a free-ranging exploration of the techniques employed by Mr. Gertz, a journalist who has made a specialty of obtaining and publishing classified information. “I can’t imagine the judge has that in mind,” Mr. Leeper said.

Other advocates for journalists were less sanguine. “It is very, very troubling,” the executive director of the Reporters Committee for Freedom of the Press, Lucy Dalglish, said. She said journalists often submit affidavits about their work, but are rarely subjected to live questioning by a judge about amorphous concepts such as newsworthiness.

A lawyer who regularly represents journalists, Theodore Boutrous, said the testimony could be useful, but presented a significant risk. “As you start to explore how this particular reporter pursues his reporting, you raise some thorny First Amendment questions. It could be a very uncomfortable situation,” the attorney said.

Judge Carney’s insistence on pursuing what he views as grand jury leaks has also exposed what seems to have been a disagreement at the Justice Department about whether Mr. Gertz should have been called before another grand jury to testify about his sources.

Last week, a prosecutor who investigated the leak at the judge’s request, Jay Bratt, asked for a two-month delay in next week’s hearing. Mr. Bratt filed the explanation for his request under seal. Judge Carney refused the requested delay and said he saw no reason to keep the government’s explanation secret.

Yesterday, the government filed a declaration from the top lawyer in the Justice Department’s National Security Division, J. Patrick Rowan, strongly suggesting that prosecutors asked Attorney General Mukasey to authorize a subpoena for Mr. Gertz and that Mr. Mukasey did not agree. “DOJ attorneys have sought the Attorney General’s approval to issue grand jury subpoenas for a witness,” Mr. Rowan wrote.

Taken together, Mr. Rowan’s declaration and Judge Carney’s recent order indicate that the government asked for a delay because it was having trouble deciding whether prosecutors could or should take part in grilling Mr. Gertz next week and that the difficulty stems from the Justice Department’s earlier decision not to force the reporter to answer questions before a grand jury.


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