San José, Costa Rica, since 1956

Reporters in Jail to Protect Sources: Could U.S. Case Be Repeated Here?

WITH one U.S. reporter behind bars for not complyingwith a court order to reveal her sources and anotherwho avoided jail when his source gave him an eleventh hourgreen light to cooperate, Costa Rican media watchdogsare casting a wary eye toward their own courts.“In Costa Rica there’s no legally established guaranteethat a journalist has the possibility of granting anonymityto a source,” Eduardo Ulibarri, president of the recentlyestablished Press and Freedom of Expression Institute(IPLEX), told The Tico Times. “If a judge wants todemand that journalists (reveal their sources), they haveto. This case will give judges in other countries more legitimacyin demanding sources.”Raúl Silesky, former president of the Costa RicanJournalists’ Association and secretary of IPLEX, called theU.S. case a threat to future reports relying on anonymouswhistleblowers.“It looks like a step backward in the security of journalistswho are informing people about what they need toknow, since we know many sources will not want to inform on dangerous things or acts of corruptionthat could be occurring in the state sphere,”he said.NEW York Times reporter JudithMiller began serving a four-month sentenceJuly 6 for criminal contempt of court onorders from judge Thomas Hogan of theFederal District Court in Washington, D.C.,after she refused to reveal sources wholeaked the identity of an undercover CIAagent. Time magazine reporter MatthewCooper narrowly avoided a similar fatewhen, that same day, he said his source gavehim permission to talk to the grand juryinvestigating the possible crime.Nearly two years to the day before theruling that put Miller in jail, conservativeChicago Sun-Times columnist RobertNovak blew CIA agent Valerie Plame’scover, attributing the information to twohigh-ranking officials in the administrationof U.S. President George W. Bush.Shortly afterward, Cooper wrote that hehad received similar information; Millerinvestigated the issue but the New YorkTimes did not publish a report.President Bush appointed special counselPatrick Fitzgerald to investigate thesource of the leak. Fitzgerald subpoenaedMiller and Cooper and ordered them toname names. Novak will not say whetherhe was subpoenaed or whether he cooperatedwith the investigation, promising tocome clean when the case is concluded.JUDGE Hogan told Miller she canwalk when she talks, but she says she willnever reveal her sources.The issue is a clash between safeguardingjournalists’ right to gather news and thecourts’ ability to investigate crime, but italso involves the Bush administration’sjustification for the war in Iraq.Before Novak’s column appeared,Plame’s husband, Joseph C. Wilson IV, aformer United States ambassador, wentpublic with evidence he found that contradictedthe administration’s prewar claimthat Iraq had sought uranium in Africa fornuclear weapons. He called the leak avengeful response to his actions.MARIO Houed, retired from 16 yearsas a justice of the Penal Branch of CostaRica’s Supreme Court (Sala III), called theruling an “excess of the North Americansystem.“It would seem right (for a court) todetermine whether a report is true orfalse,” demanding a journalist prove theintegrity of the report, but “I think orderingsomeone to give up the source or go to jailis excessive,” he told The Tico Times.In his 32-year career there has not beensuch a case in Costa Rica, he said.“In an indirect way, sources’ identitiesare protected” here, he added.Costa Rica, as a signatory of theAmerican Convention on Human Rights,must protect newsgathering activities,including the protection of sources,according to Monserrat Solano, vice-presidentof IPLEX.SHE cited a statement from EduardoBertoni, the Special Rapporteur forFreedom of Expression of the WashingtonbasedInter-American Commission onHuman Rights, who said he “deplores”Judge Hogan’s order.“In furtherance of the public’s right toinformation, it is imperative that journalistsretain the right to confidentiality ofsources,” the commission said in a statementreleased on its Web site, week before Miller’s imprisonment,the U.S. Supreme Court refused tohear an appeal by both Miller and Cooper.“I don’t know why the Supreme Courtdidn’t take the case,” Solano said. “Youhave a very clear (earlier) statement fromthe court that confidentiality of sources isimportant to newsgathering activities.”THE Supreme Court’s earlier ruling isan extension of the 1991 decision in Cohenv. Cowles Media Co, in which a reporterpromised anonymity to a source in exchangefor information about a political candidate,then broke the promise. The source, a politicalconsultant, lost his job. The court ruledagainst the newspaper, concluding, “theenforcement of the press promise wouldpossibly enhance the ability of journalists togather information in the future, by reassuringsources that a reporter’s pledge of confidentialityis enforceable,” according to thebook “Freedom of Expression and Freedomof Information,” edited by Jack Beatson andYvonne Cripps.“Using the journalists is a shortcut inthe investigation,” Solano said. The court“should do a proper investigation and notjust tell the journalists” to reveal theirsources. “If this goes on in the States, it isa bad example to Latin America.”IPLEX President Ulilbarri is a formereditor of the daily La Nación, the newspaperthat, with Channel 7 TV News, led themedia charge against two ex-Presidentswho were jailed in connection with corruptioncharges (not while underUlibarri’s directorship). Some of thepaper’s reporting involved leaks of testimonygiven in court, information that isnot public under Costa Rican law.In an internal investigation, theJudicial Branch examined news reportsand interrogated a number of journalists,demanding they give up their sources. LaNación journalists refused, Ulibarri said.But, he added, the questioners had no legalpower to force people to reveal theirsources because it was not part of a trial.Fernando Guier, a lawyer for La Nación,would not comment on the issue, saying heis involved in a trial, ostensibly related, butabout which he also declined to comment.EVEN the ethical right to protectsources may not be a hard and fast rule.“If a journalist has information which,if divulged, can be vital in stopping acrime… and doesn’t hand over the informationto authorities, he or she is committinga horrible crime,” Ulibarri said.However, of the Miller case, he said, “Shehas done well in not revealing the source.”

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