Time Will Provide Records in Case Involving Source

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The New York Sun

WASHINGTON – After a year of legal wrangling, Time magazine agreed yesterday to provide records about one of its reporters’ confidential sources to federal prosecutors who are investigating the alleged leak of the identity of a CIA operative.


The magazine’s decision triggered a wave of criticism from journalists and press advocates, as well as a pointed rebuke from the New York Times, which has a reporter facing possible jail time as a result of the same investigation.


“The same Constitution that protects the freedom of the press requires obedience to final decisions of the courts and respect for their rulings and judgments,” the editor in chief of Time Inc., Norman Pearlstine, said in a statement announcing the company’s decision to turn over the records. “That Time Inc. strongly disagrees with the courts provides no immunity. The innumerable Supreme Court decisions in which even presidents have followed orders with which they strongly disagreed evidences that our nation lives by the rule of law and that none of us is above it.”


Mr. Pearlstine said he believed that the decision eliminates any justification for jailing the magazine’s reporter, Matthew Cooper. Mr. Cooper and a reporter for the New York Times, Judith Miller, have been held in contempt of court by a federal judge for refusing to testify about their sources. An appeals court has upheld the contempt citations. On Monday, the Supreme Court declined to take up the matter.


The judge who held the reporters in contempt, Thomas Hogan, has set a final hearing for Wednesday and has advised the reporters to be prepared to go to jail anytime thereafter.


The publisher of the Times, Arthur Sulzberger Jr., expressed dismay that the venerable newsweekly had given up the fight. “We are deeply disappointed by Time Inc.’s decision,” Mr. Sulzberger said. “We faced similar pressures in 1978 when both our reporter Myron Farber and the Times Company were held in contempt of court for refusing to provide the names of confidential sources. Mr. Farber served 40 days in jail and we were forced to pay significant fines.”


Mr. Farber’s notes were sought by lawyers for a defendant in a New Jersey murder case, Mario Jascalevich. The records were never turned over to the court, and Dr. Jascalevich was ultimately acquitted.


In interviews yesterday, Mr. Pearlstine said he thought that the newspaper made a mistake by not acquiescing to the courts. “I think the Times was wrong in 1978. I do not believe that journalists and reporters are above the law,” the editor told National Public Radio.


Reached at his Manhattan home yesterday, Mr. Farber took strong exception to the Time editor’s comments. “I don’t regret what I did. I disagree entirely with Norman Pearlstine. I think what he did today makes it all the more difficult for reporters to gather information,” said Mr. Farber, who left the Times in 1993.”I don’t regard myself as above the law either, but there comes a time when you have to pay the price of not adhering to the latest legal ruling, if you must. History is strewn with examples of that.”


Mr. Farber also faulted Mr. Pearlstine’s public suggestions that one of the factors that led to the magazine’s capitulation was that the case involved “national security.”


“That’s ridiculous,” the former Times reporter said. “People have been criticizing President Bush for invoking 9/11 with regard to Iraq just the other day. Now, Norman Pearlstine wants to invoke national security as a reason for identifying a confidential source? That’s way out of balance.”


The present clash between prosecutors and the press stems from a newspaper column that identified the wife of Joseph Wilson IV, a former ambassador who accused President Bush of overstating Iraq’s efforts to procure nuclear materials, as a CIA operative. Mr. Wilson later asserted that his wife, Valerie Plame, was publicly named as part of a “smear job” by the administration.


Mr. Cooper contributed to two Time stories discussing Mr. Wilson. Ms. Miller never wrote a story about the issue, but she did some related reporting.


The special prosecutor handling the politically sensitive inquiry, Patrick Fitzgerald, declined to comment on yesterday’s development.


Press lawyers, journalism professors, and working reporters reacted yesterday with nearly uniform dismay to Time’s decision.


Some attributed Time’s action to its position as a relatively small component in a large media conglomerate with holdings, such as America Online, that are under close scrutiny by the government. “There’s no doubt that the conglomerization of everything complicates things,” said Robert Greene, a press ethics analyst at a leading journalism study center, the Poynter Institute.


Others said that in the wake of high profile corporate governance scandals, directors and executives at Time Warner must have been wary about their legal liability if they defied a court order. Mr. Fitzgerald suggested at a court hearing Wednesday that it would be without precedent for a publicly traded company like Time Warner to defy a court order.


However, press attorneys said yesterday that news organizations, including some that are part of public companies, have refused to comply with court orders on numerous occasions.


One attorney who has closely followed the current dispute said Time’s change of heart may have been prompted by Judge Hogan’s indication that he might make the $1,000-a-day fine he already ordered retroactive for the past nine months. “We could be talking six- or seven-digit fines,” the lawyer said. “The directors of the corporation could be exposed to substantial liability from shareholders.”


A University of Minnesota law professor who is a longtime legal advocate for the press, Jane Kirtley, said Time has left the impression that its decision was financial in nature. “It just makes it look like they blinked because of the money,” she said. Mr. Pearlstine denies that financial considerations affected the decision.


Ms. Kirtley said the magazine’s decision will embolden prosecutors to seek confidential information from news outlets with far smaller budgets than Time’s. “It’s really troubling when the big boys cave in like this,” she said.


A Rhode Island television reporter who recently spent four months under house arrest for defying a similar court order, James Taricani, also criticized the magazine. “This Time decision, in my opinion, is really disappointing. I think in these cases we need to stick together,” he said.


A former columnist and reporter for the Times, Anthony Lewis, said reporters should not expect the government to accede to their assurances of confidentiality. “There is an irreconcilable conflict. Journalists have a promise to keep. It doesn’t follow that the law has to recognize the promise,” he said. “I’m really sorry for Judy Miller. It’s horrible what she’s going through.”


One confusing aspect of the present dispute is why Time Inc. was held in contempt and not Mr. Cooper alone.


Mr. Pearlstine said yesterday that some of the records sought from the company were the reporter’s notes. However, an attorney involved in the case said most of the materials at issue are internal communications.


Asked if Time had ordered Mr. Cooper to surrender his personal notes to the company, the lawyer said, “It would be inaccurate to suggest that.”


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