Case Nos. 04-3138, 04-3139 and 04-3140
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_____________________________________________________________
_____
In Re: Grand Jury Subpoena, Judith Miller
No. 04-3138
In Re: Grand Jury Subpoena, Matthew Cooper
No. 04-3139
In Re: Grand Jury Subpoena, Time Inc.
No. 04-3140
_____________________________________________________________
_____
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________________________________________
_____
MOTION OF 36 MAJOR NEWS ORGANIZATIONS AND
REPORTERS’ GROUPS FOR LEAVE TO FILE A BRIEF AMICI
CURIAE AND
BRIEF AMICI CURIAE IN SUPPORT OF PETITION FOR
REHEARING EN BANC OF APPELLANTS
JUDITH MILLER, MATTHEW COOPER AND TIME INC.
Victoria Toensing
diGENOVA & TOENSING LLP
901 15th Street, N.W.
Suite 430
Washington, D.C. 20005
Telephone: (202) 289-7701
N.W.
Fax: (202) 289-7706
Bruce W. Sanford
Robert D. Lystad
Bruce D. Brown
Michael L. Powell
BAKER & HOSTETLER LLP
1050 Connecticut Avenue,
Suite 1100
Washington, D.C. 20036
STATEMENT OF INTEREST OF AMICI CURIAE
Movants and Amici Curiae are a group of 36 major news
organizations and professional groups representing journalists. Many are
engaged in the dissemination of news to the public, including reports of
newsworthy statements made by confidential sources. Because the decision
of this Court and the actions of the Special Counsel threaten the ability of
the press to report on issues of substantial public concern, movants seek
leave to file a brief bringing relevant matters to the Court’s attention. Amici
have in the attached Motion requested authority to file their Brief pursuant to
Fed. R. App. P. 29(a) and D.C. Circuit Rule 29(b).
ARGUMENT
A.
The Constitutionally Protected Role Of The Press In American
Democracy Requires Customized Procedures When Reporters
Are Subpoenaed In A Governmental Leak Investigation.
The Constitution bestows on the press a distinctive role in American
democracy. As Justice Potter Stewart recognized in his seminal 1974 speech
at the Yale Law School Sesquicentennial, the press business is “the only
organized private business that is given explicit constitutional protection.”1
While the “liberty of the press” under the First Amendment’s promise of
1
75).
Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 632 (1974-
freedom of expression is no greater than the liberties conferred upon every
citizen,2 the Free Press Clause is not a “constitutional redundancy,” but an
insistence on the “institutional autonomy” of the press as a “fourth
institution outside of the government as an additional check on the three
official branches.”3 Justice Stewart saw a “unifying principle” underlying
the Supreme Court’s decisions dealing with the press, one that sends a clear
message for this case: The press is neither a public utility nor a
psychotherapist, and carefully customized approaches are necessary when
the press’s functions conflict with those of the three official branches.
Courts have not hesitated to establish appropriate procedures to preserve the
autonomy between the unofficial and official branches of government.4
The conflict here comes from the Executive Branch seeking to enlist
the press’s cooperation in the investigation of so-called “leaks,” an imprecise
term that generally refers to the selective disclosure by a government official
of information deemed by the government to be confidential or classified.
First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 801-02 (1978)
(Burger, J., concurring).
3
Stewart, supra note 1, at 634.
4
See, e.g., Hustler v. Falwell, 485 U.S. 46 (1988) (enhanced protection
for statements about public figure); Richmond Newspapers, Inc., v. Virginia,
448 U.S. 555, 573 (1980) (press access to criminal trials as “surrogates for
the public”); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974)
(editorial freedom); New York Times Co. v. United States, 403 U.S. 713
(1971) (presumption of unconstitutionality of prior restraint).
2
Yet “leaks” have become a pervasive, often preferred, method for the
government to distribute information unofficially or informally, for aides to
explain official pronouncements, and for bureaucrats to advance their
political, policy, or personal agendas. For the press (and the public), “leaks”
are an often indispensable way to ascertain the truth of what is going on in
government.
Two other truisms about “leaks,” and certainly the one involved in
this case, can be said. First, they often are communicated during
conversations with reporters that would not occur except for the promise of
confidentiality. Second, they usually impart but an isolated piece of
information that is important only because it adds a thread or two to the
overall fabric of an ongoing news story of national significance. Thus, the
explanation by a White House official to Robert Novak that Joseph Wilson
had been sent by the CIA to Niger because his wife, Valerie Plame, worked
for the CIA represents a single fact in what has been an enduring and crucial
news story for the past two years – i.e., did the Bush Administration invade
Iraq with a reasonable, if mistaken, belief that the Saddam Hussein regime
possessed weapons of mass destruction? As that story unfolded, the nation’s
focus migrated from questions about the failures of America’s intelligence
operations, to “leaks” from the intelligence community that embarrassed the
Bush Administration during a presidential election, to the President’s
housecleaning of the CIA following the election.
The information given to Novak must be seen in light of this broader
canvas, which also calls into question the conduct of the CIA and the
intelligence community, and whether the government was taking the
necessary steps to keep the name of a covert employee secret. It is in this
context that a statute criminalizing the purposeful disclosure of the identity
of a “covert agent” – which has been used only once in its 22-year history –
is being invoked. But the circumstances necessary to prove that crime seem
not to be present here, and they should be carefully examined before
contempt sanctions are upheld.
This Court should grant en banc review because the consolidated
cases involve a question of exceptional importance: whether First
Amendment values require that the Judiciary provide customized procedures
for reporters subpoenaed when the government investigates itself in leak
cases. See Fed. R. App. P. 35(b)(1)(B). This Court should direct the District
Court to conduct a hearing to determine whether specific elements of the
criminal statute in question, which can only be fulfilled by third-party
government testimony, have been met. Only if that inquiry is conducted – in
a process that affords reporters’ counsel an opportunity to examine and
contest evidence that exists independent of the grand jury but is only in the
government’s possession – can the Judiciary both assure the public it is
acting in the public interest and preserve the autonomy of the press.
B.
There Is Ample Evidence On The Public Record To Cast
Considerable Doubt That A Crime Has Been Committed.
1.
The Intelligence Identities Protection Act of 1982 Was
Narrowly Drafted To Ensure that Only Specific Actions Under
Specific Circumstances Would Support a Finding of
Criminality.
Most criminal acts do not pose the statutory questions raised in this
case. For crimes such as assault, murder, or robbery, the only unanswered
question usually is: Who did it? Some conduct is criminal only if it is
furthered by the specific intent and/or knowledge of the perpetrator, such as
fraud or income tax evasion. The statute that forms the basis of this
investigation requires evidentiary proof far beyond even a specific intent
crime: it requires the government to have met certain criteria.
To prove a violation of the Intelligence Identities Protection Act of
1982, Pub. L. No. 97-200, 1982 U.S.C.C.A.N. (96 Stat. 122) 145 (codified at
50 U.S.C. §§ 421-426 ) (the “Act”) (Tab A), the government must establish
the following elements:

The United States is taking affirmative measures to conceal a
covert agent’s intelligence relationship to the United States;

The covert agent whose identity was disclosed is an employee
of an intelligence agency;

The covert agent whose identity was disclosed has a
relationship with such agency that is classified;

At the time of the disclosure, the covert agent whose identity
was disclosed was serving outside the United States or had done so
within five years of the disclosure;

The person disclosing the identity of that covert agent must be
authorized, directly or indirectly, to have access to classified
information that identifies the covert agent;

The person disclosing the identity knows that the government is
taking affirmative measures to conceal the relationship;

The person disclosing the identity knows that the information
so identifies the covert agent;


The disclosure is intentional; and
The identity is disclosed to a person not having authorization to
receive such information.5
As a further hurdle to any prosecution, the statute provides for a
defense where, prior to disclosure, the “United States had publicly
acknowledged or revealed the intelligence relationship” of the covert agent.
50 U.S.C. § 422(a); S. Rep. 97-201, at 23 (1981), reprinted in 1982
U.S.C.C.A.N. 145, 167.
The statute was specifically “crafted with care” to be used in limited
circumstances, because Congress wanted to “exclude the possibility that
casual discussion, political debate, the journalistic pursuit of a story on
intelligence, or the disclosure of illegality or impropriety in government will
be chilled by the enactment of the bill.” S. Rep. 97-201, at 12. Congress
intended to criminalize only disclosures that “clearly represent a conscious
and pernicious effort to identify and expose agents with the intent to impair
or impede the foreign intelligence activities of the United States….” Id.6
Another chief purpose of the Act was “the strengthening of cover
itself.” S. Rep. 97-201, at 12-13. One of the seven Congressional findings
for this legislation was as follows: “The policies, arrangements and
procedures used by the Executive branch to provide for U.S. intelligence
officers, agents and sources must be strengthened and fully supported.” S.
Rep. 97-201, at 11; see 50 U.S.C. § 423(a).
2.
Public Information Casts Considerable Doubt that the
Government Took the “Affirmative Measures” Required by the
Act to Conceal Plame’s Identity.
At the threshold, an agent whose identity has been revealed must truly
be “covert” for there to be a violation of the Act. To the average observer,
much less to the professional intelligence operative, Plame was not given the
“deep cover” required of a covert agent. See 50 U.S.C. § 426 (“covert
5
50 U.S.C. § 421; see S. Rep. 97-201, at 15-21 (1981), reprinted in
1982 U.S.C.C.A.N. 145, 159-165 (hereinafter “S. Rep. 97-201”) (report of
Senate Judiciary Committee accompanying the Act) (Tab B).
6
The Senate emphasized the limited nature of the Act, noting that the
Act’s prohibitions were not intended to affect the “First Amendment rights
of those who disclose the identities of agents as an integral part of another
agent” defined). She worked at a desk job at CIA headquarters, where she
could be seen traveling to and from, and active at, Langley. She had been
residing in Washington – not stationed abroad – for a number of years. As
discussed below, the CIA failed to take even its usual steps to prevent
publication of her name.
Moreover, the government may have “publicly acknowledged or
revealed” her intelligence relationship prior to publication of Novak’s July
14, 2003 column. “The United States has ‘revealed’ an intelligence
relationship if it has disclosed information which names, or leads directly to
the identification of . . . a covert agent.” S. Rep. 97-201, at 23. An article in
The Washington Times indicated that Plame’s identity was compromised
twice prior to Novak’s publication.7 If this information is accurate – another
fact a court should explore – there is an absolute defense to prosecution. See
50 U.S.C. § 422(a).
As a further means of ensuring the Act would not intrude into
journalistic activity, Congress insisted that the government prove it was
enterprise such as news media reporting of intelligence failures or abuses . . .
.” S. Rep. 97-201, at 17.
7
Bill Gertz, “CIA officer named prior to column,” The Washington
Times, July 23, 2004, at A4 (noting that a Moscow spy first disclosed
Plame’s identity to Russia in the mid-1990s, and a more recent “inadvertent
disclosure” stemming from references to Plame in “confidential documents
taking “affirmative measures” to conceal the covert agent’s identity. 50
U.S.C. § 421. The prosecution cannot fulfill this element by proving the
United States has “not publicly acknowledged or revealed” the covert
relationship. S. Rep. 97-201, at 19. Similarly, the “mere fact that an
intelligence relationship appears in a [classified] document” does not
establish affirmative measures. Rather, this provision was “intended to
confine the effect of the bill to relationships that are deliberately concealed
by the United States,” an element that depends on the “facts and
circumstances of each case.” S. Rep. 97-201, at 18-19 (emphasis added).
There are sufficient facts on the public record that cast considerable
doubt as to whether the CIA took the necessary “affirmative measures” to
conceal Plame’s identity. Indeed, these facts establish such sloppy tradecraft
that, at minimum, the CIA was indifferent to the compromise of her identity.
The following facts are public:

The CIA sent a non-CIA employee, Joseph C. Wilson 4th,
on a mission to Niger to determine whether Saddam Hussein
had tried to purchase “uranium yellow cake,” an ingredient for
making a non-conventional weapon.8
sent by the CIA to the U.S. Interests Section of the Swiss Embassy in
Havana,” which was read by the Cubans) (Tab C).
8
Joseph C. Wilson 4th, “What I Didn’t Find in Africa,” N.Y. Times,
July 6, 2003, Sec. 4, Col. 1 at 9 (the “Wilson Op-Ed”) (Tab D).

Wilson had not served in Niger for over two decades, and,
unlike his supposedly undercover wife, was not an expert in
nuclear weapons.9

Wilson was not required to sign a confidentiality agreement
about his mission. 10

Wilson was not prevented by the CIA from writing his OpEd for The New York Times, an article that not only criticized
the Administration, but also detailed his mission and findings.11

When columnist Novak contacted the CIA to verify that
Plame worked for the Agency, he says that the Agency not only
verified her employment but also failed to give him a serious
request not to publish her name.12
 The CIA’s usual procedure when it is concerned that
publishing a fact would endanger a covert agent is to have a
9
See Corporate & Public Strategy Advisory Group biography on
Ambassador Joseph C. Wilson 4th, at
www.cpsag.com/our_team/wilson.html.
10
According to Congress’s Iraq investigation, CIA officials said that
while the CIA promised to keep Wilson’s relationship with the CIA
confidential, Wilson was not asked to sign a confidentiality or nondisclosure agreement. See Report on the U.S. Intelligence Community’s
Prewar Intelligence Assessments on Iraq, Select Committee on Intelligence,
U.S. Senate (July 7, 2004), at 41.
11
Wilson, for his part, has said his mission was “discreet but by no
means secret” and that he made it “abundantly clear to everyone I met” that
he was acting on behalf of the U.S. government. See Wilson Op-Ed.
Classification does not turn on such a fact. If his mission was not “secret”
then his reporting to the U.S. government should have been made public. It
has not.
12
As Novak wrote in one column, “. . . I would like to stress three
points. First, I did not receive a planned leak. Second, the CIA never
warned me that the disclosure of Wilson’s wife working at the agency would
endanger her or anybody else. Third, it was not much of a secret.” Robert
Novak, “Columnist wasn’t pawn for leak,” Chicago Sun-Times, Oct. 1,
2003, at 49 (Tab E).
high ranking official, usually the Director, contact the
journalist and ask that information not be published.13
 The CIA did not prohibit Plame from making political
contributions under the name “Wilson, Valerie E.,” facts that
are publicly available at the FEC.
Novak’s column can be viewed as critical of CIA ineptitude: the
Agency’s response to a request by the State Department and the Vice
President’s office to verify whether a specific foreign intelligence report was
accurate was to have “low level” bureaucrats make the decision to send a
non-CIA employee (neither an expert on Niger nor on weapons of mass
destruction) on this crucial mission at his wife’s suggestion. See also
Wilson Op-Ed. Did no one at Langley think that Plame’s identity might be
compromised if her spouse writes a nationally distributed Op-Ed piece
discussing a foreign mission about a volatile political issue that focused on
her subject matter expertise?
13
As former CIA Director James Woolsey has explained, on several
occasions while serving as Director he successfully requested media outlets
to withhold material because certain facts “could endanger someone’s life.”
CNN Live At Daybreak (television broadcast transcript, Sept. 30, 2003, at 2)
(comments of Woolsey) (Tab F). If a serious request not to publicize
Plame’s identity had been made, Novak would have obliged. As he told
Meet the Press moderator Tim Russert, “I know George Tenet, the director.
They would have put him on, and he would have said, ‘Novak, don’t write
this,’ and I would not if this woman is in danger.” Meet The Press, NBC,
Oct. 5, 2003 (transcript of colloquy between Russert and Novak) (Tab G).
The public record provides ample evidence that the CIA was at least
cavalier about, if not complicit in, the publishing of Plame’s name.
Moreover, given Novak’s suggestion of CIA incompetence plus the resulting
public uproar over Plame’s identity being revealed, the CIA had every
incentive to dissemble by claiming it was “shocked, shocked”14 that leaking
was going on, and thus made a routine request to the Justice Department to
investigate.
Although only the Special Counsel knows for certain, it appears that
the “affirmative measures” criteria has not been vetted under oath.
Presumably the CIA sent to the Justice Department in the Fall of 2003
answers to the standard questions used by the government as the basis for
any leak investigation. See Tab H (the “Leak Questionnaire”).
The Leak Questionnaire is a boilerplate form, intended to provide
facts sufficient for the Justice Department to determine that the information
disclosed had been classified and not “officially” released. Leak
Questionnaire, No. 8. It does not require information sufficient to establish
certain elements under the Act, nor does it require any submission under
oath, not even a person’s signature. It asks only that the person responding
be “competent to testify concerning [the] classification.” Leak
14
Casablanca, Warner Bros. Studios, 1942.
Questionnaire, No. 9. The questionnaire does not establish to what extent
the CIA attempted to prevent Plame’s name from being published or what
“affirmative measures” were utilized to protect her identity. It does not
provide for any facts establishing the five-year foreign assignment
requirement. Simply put, the information requested by the questionnaire
provides no basis for meeting the elements required for prosecution under
the Act. Compare Leak Questionnaire with 50 U.S.C. §§ 421-22, 426.
As the Special Counsel concedes, an investigation that is brought in
“bad faith” alters the application of Branzburg. See In Re Grand Jury
Subpoenas, Judith Miller, at 12 (D.C. Cir. Case Nos. 04-3138, 04-3139, 043140, filed Nov. 3, 2004), Brief of the United States, Appellee, citing
Branzburg v. Hayes, 408 U.S. 665 (1972). While there is no suggestion that
the Special Counsel is proceeding in bad faith, there should be abundant
concern that the CIA may have initiated this investigation out of
embarrassment over revelations of its own shortcomings.
C.
Before Enforcing Subpoenas On Journalists During Leak
Investigations Where Government Conduct Is At Issue, The
Judiciary Should Undertake An Independent Evaluation –
Including Putting CIA Officials Under Oath In An Adversarial
Hearing – To Determine Whether Certain Elements Of An
Underlying Crime Have Been Met.
Caselaw reflects an understandable tendency for the Judiciary to defer
to the Executive Branch on matters of national security. See, e.g., United
States v. New York Times Co., 328 F. Supp. 324, 330 (S.D.N.Y. 1971), rev’d
and remanded, 444 F.2d 544 (2d Cir. 1971) (en banc), aff’d, New York
Times Co. v. United States, 403 U.S. 713 (1971) (per curiam). But when the
Executive Branch investigates its own leaks and the public is presented with
the image of the government threatening the press with contempt sentences,
the Judiciary should reasonably be expected to transcend that deference with
a concern for the public interest and public confidence in the courts. See
Richmond Newspapers, Inc., v. Virginia, 448 U.S. 555, 572 (1980) (“People
in an open society do not demand infallibility from their institutions, but it is
difficult for them to accept what they are prohibited from observing.”). As
Judge Tatel wrote, “. . . the executive branch possesses no special expertise
that would justify judicial deference to prosecutors’ judgments about the
relative magnitude of First Amendment interests.” In Re Grand Jury
Subpoenas, Judith Miller, 397 F.3d 964, 998 (D.C. Cir. 2005) (“Miller”)
(Tatel, J., concurring). “Assessing those interests,” said Judge Tatel,
“traditionally falls within the competence of the courts.” Id. (citing
Landmark Communications, Inc., v. Virginia, 435 U.S. 829, 843 (1978)).15
As the Supreme Court said in Landmark, “[d]eference to a legislative
finding cannot limit judicial inquiry when First Amendment rights are at
stake. . . . Were it otherwise, the scope of freedom of speech and of the
press would be subject to legislative definition and the function of the First
Amendment as a check on legislative power would be nullified.” Landmark,
15
To preserve the proper role of the press in American democracy, the
District Court should conduct a customized hearing to require the CIA and
other appropriate government officials to identify all affirmative measures
they were taking to shield Plame’s identity. The CIA should swear to its
answers to the Leak Questionnaire, and further swear that all elements of the
Act within its knowledge and responsibility have been satisfied. The
reporters’ counsel should be given the opportunity to contest evidence that
exists independently of the grand jury but that is only in the government’s
possession. If a neutral analyst determines that the
435 U.S. at 843-44; see also Miller, 397 F.3d 964, 998 (D.C. Cir. 2005)
(Tatel, J., concurring) (“the dynamics of leak inquiries afford a particularly
compelling reason for judicial scrutiny of prosecutorial judgments regarding
a leak’s harm and news value.”).
CIA lacks sufficient evidence to fulfill the elements of the crime underlying
the leak investigation, then no crime under the Act has been committed and
any need to compel Miller and Cooper to reveal confidential sources should
evaporate.
Dated: March 23, 2005
Respectfully submitted,
By
Victoria Toensing
diGENOVA & TOENSING, LLP
901 15th Street, N.W.
Suite 430
Washington, D.C. 20005
Telephone: 202-861-7701
N.W.
Fax: 202-289-7706
Bruce W. Sanford
Robert D. Lystad
Bruce D. Brown
Michael L. Powell
BAKER & HOSTETLER LLP
1050 Connecticut Avenue,
Suite 1100
Washington, D.C. 20036
Telephone: 202-861-1500
Fax: 202-861-1783
Attorneys for Amici Curiae
Full Document in PDF