Washington, 13 August 2004 (RFE/RL) -- It all began with 16 words that Bush uttered in January 2003 in his annual State of the Union address: "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa."
Career diplomat Joseph Wilson says that statement was not true. As the Bush administration was considering going to war against Iraq, the CIA sent Wilson to the African nation of Niger to investigate the British report. Wilson says he found that the story was baseless, and told the CIA.
"What the courts have said is that a journalist should not be compelled to testify until all other avenues of investigation are exhausted."
Yet the accusation that Wilson reported to be false remained in Bush's speech, and took on added significance as the president sought to justify the coming war in Iraq.
Wilson said he tried for months to get the White House to retract the statement, but to no avail. Finally, in July 2003, he wrote an article for "The New York Times" newspaper seeking to discredit Bush's assertion about Saddam Hussein and nuclear-weapons material.
A week later, Robert Novak, who is sympathetic to the Bush administration, published a column saying Wilson was chosen to investigate Hussein's link to Niger only because his wife recommended him. Wilson's wife, Novak noted, was a CIA operative. In fact, she was an undercover agent.
U.S. law forbids the intentional identification of undercover intelligence operatives, and a special prosecutor was appointed to investigate. Among the witnesses the prosecutor has subpoenaed are several reporters who were reportedly leaked the same information but who -- unlike Novak -- did not write about it.
Matthew Cooper is one of those journalists. When he refused to testify, a judge ruled him in contempt of court and ordered him jailed for the term of the grand jury, which is expected to last about 18 months, or until he testifies. His magazine, "Time," was ordered to pay a fine of $1,000 a day on the same terms.
Cooper -- who is free pending an appeal -- argues that he could not continue to do his job as a reporter if he broke his promise of anonymity to his sources, even under the threat of imprisonment.
On 11 August the Committee to Protect Journalists (CPJ) -- which normally concerns itself with suspected violations of press freedoms in countries such as Russia and Myanmar -- expressed concern about the jailing of a journalist in America.
CPJ's executive director, Ann Cooper -- no relation to the magazine reporter -- concedes that this case is quite different from the leadership of a more fragile democracy striking out to silence its critics. But she tells RFE/RL that the United States should send a much more positive message to the world about freedom of expression: "Around the world at the beginning of 2004 there were 136 journalists in prison, in China, Cuba, Eritrea, Burma, Vietnam -- countries that most frequently use prison to intimidate them or to silence them. [In] this particular case, the image that would be seen is an American journalist going to jail, just as journalists are imprisoned in these other countries."
In order to avoid interference with journalistic practices, Justice Department guidelines say prosecutors may not question a journalist in such a case until they have exhausted all other methods of getting the information they need. But the CPJ's Cooper says the government has not been candid about its investigation: "What the courts have said is that a journalist should not be compelled to testify until all other avenues of investigation are exhausted. In this particular case, we don't know if that test has been met because the prosecutor has not revealed what evidence has been uncovered and what has not."
Paul Rosenzweig wonders whether too much interest is being paid to the rights of reporters. Rosenzweig is a retired prosecutor who helped investigate President Bill Clinton's personal and financial activities during the 1990s. He tells RFE/RL that the law and even the prosecutor's guidelines have been generous about protecting press freedoms: "It's only a qualified privilege, that when the government has exhausted all of its other opportunities and it's investigating a criminal matter, the reporter's interest fails."
Rosenzweig notes that some states have laws exempting journalists from divulging the identities of their anonymous sources, even in criminal probes. In fact, he says, there is nothing in the U.S. Constitution that would stand in the way of a federal law that would apply nationwide, superseding state laws.
And yet, Rosenzweig notes, no one in Congress has ever sponsored such legislation. He says that may reflect the American people's belief that journalists should not enjoy such an exemption: "One of the things that has always struck me is nothing in the world prevents Congress from passing a [shield] law. But they haven't, and that reflects a societal judgment that the reporter privilege can't be absolute."