>> NARRATOR: Tonight on Frontline... >> The job of a reporter is to be the curmudgeon who raises questions that nobody else wants to raise.

That's what the best reporters try to do.

>> NARRATOR: Once upon a time, they were thought of as heroes.

But today, the entire news industry is in crisis.

>> The public has a terrific disdain for the press.

>> We have a press that is at war with an administration while our country is at war against merciless enemies.

>> For 30 or more years, there had been an assumption about the government and the press, and suddenly in the last couple of years, that's changed.

>> NARRATOR: In a four-part special series, Frontline reporter Lowell Bergman looks at the challenges facing journalists today... >> Would you go to jail to protect your source?

>> Absolutely.

>> NARRATOR: ...the war between the White House and the press... >> The President of the United States saying, "If you publish this story, you will have blood on your hands."

>> NARRATOR: ...the explosion of new and emerging media... >> Do you ever feel like the 6:00 news just ain't cutting it for you?

>> You don't see anybody between 20 and 30 getting their news from the evening news.

You see them getting it online.

>> NARRATOR: ...and the economic realities of today's news business.

>> You have to make more every year to keep the shareholders happy.

>> NARRATOR: How did we get here?

>> We're judging journalism by the same standards that we apply to entertainment.

That may be one of the greatest tragedies in the history of American journalism.

>> NARRATOR: And what is at stake?

>> There is a dire need for institutions that tell the truth, that pursue the truth, and that chase it at all cost.

>> NARRATOR: Tonight, part one of "News War," a Frontline special series.

>> Go, go, go, go, go!

>> Over here!

>> NARRATOR: On July 6, 2005, outside the D.C. Federal District Court, a media swarm gathered.

>> Back up a little.

Let's give him a little room.

Let's back up just a little.

>> NARRATOR: They were hounding fellow journalists... >> How important do you feel about the First Amendment right to the press?

>> NARRATOR: ...reporters who were refusing to testify in the investigation known as the Plame Affair... >> Do you have any comment at all?

>> Sorry.

>> NARRATOR: ...a case that had become the most significant clash between the press and federal government in decades.

>> What do we want?

>> Free press!

>> When do we want it?

>> Now!

>> This case did damage I think to the First Amendment.

I think it did damage to the individual careers of a number of reporters.

I think it did damage to the credibility of the media.

>> NARRATOR: There was no more tangled business between the Bush administration and the press than the Plame affair.

The conflict that would raise profound questions about reporters' ability to protect their confidential sources has its roots in the administration's march to war.

(gavel banging) >> Mr. Speaker, the President of the United States.

(cheers and applause) >> NARRATOR: In January of 2003, the Bush administration was riding high.

In Afghanistan, America had toppled the Taliban, and now the President was preparing the country for a new war.

>> A brutal dictator with a history of reckless aggression, with ties to terrorism, with great potential wealth, will not be permitted to dominate a vital region and threaten the United States.

(applause) >> They were feeling a kind of confidence.

They had a kind of hubris.

If you had to look at a few months of this administration as to maybe the perils of... of overconfidence, you probably would look at these few months.

>> Saddam has perfected the game of cheat and retreat and is very skilled in the art of denial and deception.

>> NARRATOR: For several months, there had been a steady drumbeat to war.

>> What he wants is time and more time to husband his resources, to invest in his ongoing chemical and biological weapons program, and to gain possession of nuclear weapons.

>> There was clearly a set pattern of speeches, two or three times a day, to reinforce the W.M.D.

thing.

>> NARRATOR: Walter Pincus is a longtime national security reporter for the "Washington Post."

>> First, it was nuclear, and then it was the idea that they had chemical and biological.

>> As we meet, chemists and biologists and nuclear scientists are toiling in weapons labs and underground bunkers, working to give the world's most dangerous dictators weapons of unprecedented power and lethality.

>> Then it was the idea that they would give it... give it to the terrorists.

>> The man is a threat, Hutch, I'm telling you.

He's a threat not only with what he has, he's a threat with what he's done.

He's a threat because he is dealing with al-Qaeda.

>> It's just overwhelming the advantage the government has when it wants to sell a point of view, and that's what they did.

>> NARRATOR: But the Bush administration was also helped by the nation's leading newspapers.

>> It's important to understand that the number of news organizations that actually have a national security reporter or bureaus overseas and can penetrate the intelligence community are very limited.

And the New York Times is at the top of that list.

So when the New York Times began to have stories that supported the administration's claims about weapons of mass destruction in Iraq, it had an echo effect.

It had an echo effect that the administration was conscious of and employed.

>> What specifically has he obtained... >> We now know that you had people talking to key reporters doing these stories for the Times.

>> There is a story in the New York Times this morning... And I want to attribute this to the Times-- I don't want to talk about... >> Those stories would appear, and then they would reference the very material that they'd given them and say, "See, this is coming from the New York Times, not just us."

>> The kinds of tubes that are necessary to build a centrifuge.

And the centrifuge is required to take low-grade uranium and... and enhance it into highly-enriched uranium.

>> It was kind of a loop, and it was a conscious loop.

>> A lot of people wrote, you know, stories that were overly credulous.

>> NARRATOR: Bill Keller took over as Executive Editor of the New York Times after the run-up to the Iraq war.

>> It wasn't some kind of sense of overdeveloped patriotism or eagerness on the part of reporters to ingratiate themselves with the White House.

What it was, was, you know, reporters want to get on the front page.

They want scoops.

>> It's a very hard area to write about.

I was not alone.

Many other papers made the... did the same kind of reporting that I did.

I think because the New York Times is the paper that it is and I had written for so long about it, I was... >> BERGMAN: You were the leader.

You were the expert in this area.

>> I was the alleged expert.

There were other experts.

>> NARRATOR: Judith Miller was one of the Times' lead reporters on the W.M.D.

story.

She had covered terrorism for over a decade.

>> BERGMAN: You've said that you may have gotten some of the stories wrong because your sources were wrong.

>> Right.

They gave me information that I believe they believed.

It was information that was given to the President.

The National Intelligence Estimate went to the President.

Well, if the President was being given this information, it was the official intelligence assessment of the United States government and the intelligence community.

I think...

I believed that... that they wouldn't give the President false information.

>> She had the wrong sources.

And you can't... the excuse can't be, "I'm only as good as my sources."

Now, if you have...

If you've talked to everyone and exhausted every possible avenue, then you can say that.

But no reporter ever does that.

So if... if your sources are wrong, you're wrong, and you have to accept responsibility.

>> BERGMAN: You believed there was W.M.D.

in Iraq?

>> I did.

>> BERGMAN: You said as much publicly?

>> Yes.

>> What happens if we go to war against Iraq and we find no weapons of mass destruction?

>> I think the chance of that happening is about zero.

There's just too much there.

>> When I say the chances are about zero, that's the way it looked.

It was totally wrong.

I think I dropped the ball here.

I should've pushed much, much harder.

>> BERGMAN: Harder on the skepticism about the reality of W.M.D.?

>> Yes, in other words, said, "Hey, look, the evidence is not as strong as they were claiming."

>> No terrorist state poses a greater or more immediate threat to the security of our people than the regime of Saddam Hussein in Iraq.

>> An al-Qaeda-type network trained and armed by Saddam could attack America and leave not one fingerprint.

>> We have firsthand descriptions of biological weapons factories on wheels.

>> We don't want the smoking gun to be a mushroom cloud.

>> NARRATOR: Many in the media got the W.M.D.

story wrong.

>> The one part of the bill of particulars against Saddam... >> NARRATOR: Frontline aired its own report on the possible threats of Saddam's weapons programs.

>> When a man known as Saddam's bomb maker went to work... >> The way that the press was sold and spun and turned around and just fooled by the White House in the run-up to the war represents more than just a missed story.

How can one say that we have a watchdog press after a performance like that?

>> NARRATOR: In fact, there was some W.M.D.

reporting that did get the story right.

>> What we were doing was following reporting.

And good solid reporting was telling us one thing, and that's what we wrote.

>> NARRATOR: Clark Hoyt was Knight Ridder's Washington editor during the run-up to the war in Iraq.

>> What we were hearing from very good sources was really nothing has changed with Iraq.

>> NARRATOR: But as they continued their skeptical reporting, Hoyt says they began to feel heat from the government.

>> Someone in the Defense Department called our reporter a communistic Bolshevik.

Others said, "You know, all you guys have in this town "is your reputation and your credibility, and we're going to get you, and we're going to get that."

I will say at times, it seemed very lonely because you kept looking around, saying, "Where's everybody else?"

>> NARRATOR: The Washington Post had reporters who had also begun hearing doubts about the evidence of W.M.D.

in the final days before war.

>> I started calling people I knew in the Pentagon and finally got somebody who just honestly said, "We don't know where they are.

We don't know if they are there."

And then somebody in the agency did the Potemkin village idea, that Saddam Hussein was making believe he had the stuff when he didn't.

That led up to the piece two days before the war that it might not be there.

>> NARRATOR: Pincus' story ran on page 13.

The lead headline of the Post that day was: "President Tells Hussein to Leave Iraq Within 48 Hours or Face Invasion."

By the beginning of May 2003, Baghdad had fallen.

>> Major combat operations in Iraq have ended.

In the battle of Iraq, the United States and our allies have prevailed.

>> NARRATOR: The President landed aboard the "U.S.S.

Lincoln."

>> Operation Iraqi Freedom was carried out with a combination of precision and speed and boldness the enemy did not expect and the world had not seen before.

>> The Pentagon announced the dispatch of a 1,300-member search team.

>> Senior officers in Iraq are puzzled.

>> Things could have been taken and buried, they could have been transported or they could have been destroyed.

>> Enough already.

Where are the weapons of mass destruction?

>> NARRATOR: By the summer of 2003, the news media were raising questions about Saddam's W.M.D.

>> 17 U.S. troops have been killed in ambushes in Iraq since President Bush... >> NARRATOR: The news about the war grew more violent by the day.

>> Would the American people have been so supportive of going to war absent the weapons of mass destruction argument?

>> Do you believe that the administration oversold the weapons of mass destruction problem?

>> NARRATOR: And in the middle of that summer, a new critic emerged.

In an op-ed in the New York Times, a former ambassador raised doubts about a claim made by the President.

>> The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.

>> BERGMAN: When you heard the remarks of the President in his State of the Union address, were you listening to it?

>> I was, yes.

>> BERGMAN: What was your reaction when you heard those remarks live?

>> I assumed that the country to which the President was referring was not Niger.

>> NARRATOR: Joseph Wilson wrote that the Vice President's office had raised questions about this alleged Niger uranium deal and that the C.I.A.

had asked him to look into it.

He says that he found no evidence of a deal.

>> A misstatement of fundamental fact which supported the justification for the invasion of a sovereign nation was in the President's State of the Union address.

This administration failed to correct the record.

>> NARRATOR: Wilson decided to correct the record himself.

First, he agreed to talk confidentially to two reporters.

>> I had not wanted my name used in this.

It was not to hide my own role from my own government, but rather to make sure that all their attack dogs did not get an early opportunity to try and trash me.

>> BERGMAN: So why did you decide to go public?

>> Because it became apparent in June that the administration was just going to continue to stonewall.

>> Can you explain how an erroneous piece of intelligence on the Iraq-Niger connection got into your State of the Union speech?

And should somebody be held accountable, sir?

>> I gave a speech to the nation that was cleared by the intelligence services.

>> NARRATOR: Five days after Wilson's op-ed, the C.I.A.

took responsibility for not removing the faulty claim from Bush's speech.

>> Sir, how did it get into your speech if it was erroneous?

>> NARRATOR: Days later, conservative columnist Robert Novak came out with his own column.

Novak contradicted the impression that Cheney had been responsible for Wilson's trip to Niger, writing that two Bush administration officials said Wilson had been sent at the suggestion of his wife, C.I.A.

operative Valerie Plame.

>> For an administration that came to office... >> NARRATOR: Wilson was all over the news... >> Senior officials in the White House... >> NARRATOR: ...charging the White House with outing his wife, an undercover C.I.A.

officer... >> It is gratuitous.

It is a gratuitous smear.

>> NARRATOR: ...to punish him for his dissent.

>> BERGMAN: So this was hardball politics, basically.

>> It's something they're well known for, absolutely.

>> Wilson suspects the leak was deliberate, a reprisal for his challenge... >> NARRATOR: The story played as a potentially devastating scandal for the White House.

>> The Bush White House is facing a potential criminal investigation.

>> NARRATOR: Revealing Plame's identity to the press may have been a violation of the law.

>> The prosecutors and agents who are and will be handling this investigation are career professionals... >> NARRATOR: The Justice Department was called on to open a leak investigation.

>> ...in matters involving sensitive national security information.

>> BERGMAN: Your office got the referral in the Valerie Plame case?

>> Yes.

The F.B.I.

runs leak investigations when those leaks involve classified information.

>> BERGMAN: How do you conduct these investigations?

I mean, we read about them in the paper, but we have no idea actually what goes on.

>> Well, first of all, you have a victim agency, the owner of the information, those who classified it.

What they have to do is file a report which consists of 11 questions.

And those questions go from: "Was the material properly classified?"

"Was the information that was leaked accurate compared to what the actual classified information is?"

>> BERGMAN: The information has to be accurate?

>> Yes.

>> BERGMAN: So when the government announces a leak investigation and it comes to your office, it's confirming that the report in the newspaper, for example, or on television was true?

>> Yes, indirectly, yes.

>> BERGMAN: That's one way to fact check.

>> Behind the showdown is an investigation into whether someone in the White House illegally leaked the name of... >> ...claims the leak came as payback.

Libby and Karl Rove have been identified by other reporters as discussing the case.

>> NARRATOR: The question was who had leaked to Novak, and suspicions reached the highest levels of the White House.

Was it Karl Rove?

The Vice-President's chief of staff, Lewis "Scooter" Libby?

Cheney himself?

>> Listen, I don't know of anybody in my administration who leaked classified information.

If somebody did leak classified information, I'd like to know it, and we'll take the appropriate action.

>> NARRATOR: Quickly dubbed "Plamegate," the Plame Affair became a media spectacle.

>> The Bush White House is so secretive and hidden that people thought, "Oh, this is going to be the issue that will pry it open."

People have written that there were the echoes of Watergate.

>> Mr. President, on another issue, the C.I.A.

Leakgate, what do you say to critics of the administration who say that this administration retaliates against naysayers?

>> Yeah.

Well, first of all, I'm glad you brought that question up.

>> The real issue in the summer of 2003 was we'd been in Iraq for three or four months and hadn't found any weapons of mass destruction.

That was the real story.

>> Two things, I think, the administration hyped.

One was the connection to al-Qaeda, and two, their absolute certainty that they had some sense that they knew where these weapons were.

>> That was just pulsing in the background of all of this.

>> Now I see the Justice Department is now starting to investigate.

Now, isn't that a sweetheart deal?

Attorney General John Ashcroft, appointed by this President, investigating the President.

>> NARRATOR: In Congress, Democrats demanded a Special Prosecutor take over the case.

>> ...do this investigation as independent from the political appointees in the Justice Department as possible.

>> NARRATOR: And some in the media agreed.

>> BERGMAN: The New York Times editorialized for a special counsel.

>> Yes.

>> BERGMAN: And eventually, Attorney General Ashcroft stepped aside.

>> Yes.

>> BERGMAN: It's kind of ironic?

>> Be careful what you wish for.

Be careful what you editorialize for.

>> NARRATOR: This is who they got.

Known as a tough, nonpartisan career prosecutor, Patrick Fitzgerald was appointed to take over the investigation.

As he looked for the leaker, Fitzgerald decided the only way he could determine if a crime had been committed was to get the testimony of the journalists involved.

It had turned out that Novak wasn't the only one who had been given the information about Plame.

>> It is clear that at least four of us were talked to in the same way.

After Joe Wilson's column in the Times and his interview in the Post, which got buried in the back of the paper, at least four of us were given roughly the same story-- the wife arranged for the trip-- to undermine the trip, and that doesn't happen ad hoc.

So I think there was a plan to do that.

>> BERGMAN: A conspiracy to manipulate the press?

>> Or, as I put it, it's damage control.

They're not the first administration to do it.

I don't think they violated the law, but they gave an opening to people to make that allegation.

>> NARRATOR: Among those contacted by Fitzgerald was Time magazine's Matthew Cooper.

Cooper had reported on the magazine's web site that government officials had told him that Valerie Plame was a C.I.A.

official.

His primary source, Cooper's bosses knew, was Karl Rove.

>> The conversations that Matt Cooper was having about Valerie Plame's identity did not strike me as out of the ordinary.

I was frankly trying to figure out why a special counsel was needed, what the law was that was broken, why a grand jury was called, and why we were being subpoenaed.

>> BERGMAN: Because you just thought this is the way things go and this is how you report in Washington?

>> Well, first of... well, not only in Washington.

Leaks and use of anonymous sources is very much in the fabric of American journalism today.

The places where it's most obvious are in Washington and Hollywood, on Wall Street and in sports.

>> It's important in understanding the Plame case to understand how anonymous sourcing has changed over the last generation.

During Watergate, and before that, confidentiality was a tool that journalists would offer to reluctant sources to coax them to come forward.

That has shifted to the point where confidentiality and anonymity are conditions that the source often imposes on the journalist.

To the public, the whistle blower who is Deep Throat reluctantly guiding an investigative reporter is very different than a high-ranking administration official lunching in an elegant Washington hotel, spinning a reporter with the protection of confidentiality.

That's the powerful trying to get their message out to other elites through elite media, and that's what occurred in the Plame case.

>> NARRATOR: Among the powerful now in the sights of the investigation was Scooter Libby.

Fitzgerald subpoenaed the New York Times' Judith Miller, having learned that Libby had spoken to her, and Miller refused to cooperate.

>> We can't begin to say, "I'm only going to issue pledges of confidentiality "when politically I agree with the source or I think the source isn't... isn't politically motivated."

I mean, almost all leaks of information are politically motivated.

>> The law can't and shouldn't distinguish, and I would say journalists can't and shouldn't distinguish between what, good sources and bad?

>> NARRATOR: Long-time First Amendment lawyer Floyd Abrams was retained by the New York Times to represent Miller.

>> If we're going to have a political litmus test, then we're not talking about principle at all.

Then we're just talking about, you know, is this a good way to get the Bush administration, or is this a good way to... to help the Bush administration?

Nothing to do with... with matters of principle.

>> NARRATOR: The principle was protecting your source no matter what.

Cooper and Miller said they were prepared to go to jail rather than testify.

>> Once you break a confidential source relationship, there's every reason for every source in the future to not believe it when you say, "We will keep you in confidential source."

One, it's a slippery slope.

Once you break that confidentiality once, it harms our reporting from now on.

>> NARRATOR: But Fitzgerald was changing the playing field with a novel technique to get reporters to talk.

Waivers had been distributed to potential sources in the White House, releasing reporters from their pledge of confidentiality.

And then the waivers were presented to the reporters and their publications.

>> BERGMAN: Did you feel that the kinds of releases that the special prosecutor got from the White House were sufficient?

>> Our lawyers talked... No, that would not have been sufficient.

Our lawyers talked to lawyers for the individuals involved to satisfy us that the release was voluntary, personal, directly from that individual, specifically about what it was that we were asked to testify about.

>> We were told the source had come forward, had identified himself as the one who talked to me about it, and had released me to talk to the prosecutor about it if, at the same time, I never mentioned his name publicly.

And I never have.

>> BERGMAN: But you did testify?

>> I gave a deposition, yeah.

>> BERGMAN: Well, which is testimony, sworn testimony.

>> Didn't go to the grand jury.

It wasn't as dramatic as all that.

And I was never asked to identify my source, and I never did because the prosecutor knew who the source was.

One of the agreements with the prosecutor was I wouldn't be asked.

>> BERGMAN: That was to save you from losing your virginity or something?

>> Yeah, it's something I felt very strongly about.

>> Some of our people have given very limited depositions in which they have not revealed any confidential sources nor in any other way violated our ethics.

Very, very narrow testimony.

>> BERGMAN: But put yourself in the position of someone who sees a newspaper providing their reporters to give testimony, however smart the negotiation is.

>> It's not that just the negotiations are smart.

You're really... you're really evading the principle here.

The principle here is that we have not revealed confidential sources.

>> Hell no, we won't go!

Hell no, we won't go!

>> NARRATOR: The battle over confidential sources is an old one.

It came to a head during another era when the government and the press were at war.

>> In the pro and con over the riots, one thing was certain: Major social reforms were needed.

>> NARRATOR: In California, a young reporter would find himself in the middle of this war.

>> I went to California in the fall of 1968.

And really, my primary job, almost my entire job for that period as a national correspondent with the New York Times was to cover the Black Panther parties.

There was genuine concern in America that black Americans were headed towards some kind of violent confrontation with government.

And then came this group of very young people in their militaristic uniforms, black berets, black leather jackets.

But most of all, they were embracing the gun.

My job was to... my editor wanted me to get on the inside, tell us where they're going, what does this mean?

>> There's little hope of avoiding open armed war in the streets of California and preventing it from sweeping across this nation.

>> The Black Panthers posed a real threat.

In their time, they were as serious as terrorist groups would be today.

>> BERGMAN: And that was the law enforcement view.

>> That was the fact.

There were different members of the Black Panthers that were tried for various crimes, convicted of various crimes.

They were one of the many subjects of concern at the time.

>> NARRATOR: Concerned about the Black Panthers' activities, the F.B.I.

turned to Earl Caldwell.

>> The F.B.I.

called me and asked if I would have regular meetings informally with agents.

They said, "We know that you're over there all the time "and you're seeing what's happening, "and you're all around with them.

"And we'd like you just to tell us what's going on, sort of be our eyes and ears on the inside."

And I told them, "Of course I couldn't do that."

I can't even have this conversation with you.

>> NARRATOR: Eventually, the F.B.I.

told Caldwell that he might have information about a possible crime.

>> The F.B.I.

said that the Panthers had made a threat to the President.

I did have the quotes about that in my story.

The Panthers were saying, "And we recognize the government is being oppressive, "and we have our duty, obligation to bear arms against the government."

>> NARRATOR: But Caldwell refused to cooperate with the F.B.I.

>> They persisted in it.

And then one day, they said, "Tell Earl Caldwell we're not playing with him.

He doesn't want to talk to us, he can tell it in court."

This was, like, on a Friday.

On a Monday, they... they had... (chuckles) they had issue... came back with a subpoena.

>> NARRATOR: Caldwell fought the subpoena up to the Ninth Circuit Court of Appeals.

>> My lawyer argued that "You're going to destroy this reporter."

He talked about how reporters could bring back and answer and tell America about these questions that were so large at that time.

He argued that the First Amendment, this is precisely what it protects-- not just information, but the process.

We won a unanimous... (chuckles) we won a unanimous decision from the United States Court of Appeals.

>> NARRATOR: The government appealed the decision to the Supreme Court, where Caldwell's case was joined by two others, and the case became famous, commonly referred to as Branzburg.

>> We talk about the Branzburg case.

To me, it's not the Branzburg case; it's my case, it's the Caldwell case, but anyway... >> NARRATOR: At the time, James Goodale was General Counsel for the New York Times.

>> This case became a case of the press standing up to the government.

We're the press, we're over here.

This information is ours.

You're over there, the government, and the twain shall never meet.

>> BERGMAN: The press is not an arm of law enforcement.

>> Sure, the press can't be the arm of law enforcement because if it is, there's no ability for the public, for which the press is a surrogate, to criticize the government and look into what the government's done wrong.

>> I don't begrudge them from standing on their principle, but I think that there's on the other side another principle that is equally important, which is, if there's criminal conduct out there that you or I or anybody else knows about, you darn well ought to get that information to the people who are in charge of law enforcement.

>> NARRATOR: William Bradford Reynolds was a government lawyer who argued against the reporters before the Supreme Court in Branzburg.

>> The reporter's mantra is, "It's the public's right to know."

I think that the public has a right to know.

I also believe that if the reporter has... knows the identity of somebody who's committed a crime, the public has a right to know that just as much.

>> The court also ruled today that newsmen are not immune from being summoned before a grand jury and being forced to answer questions.

>> NARRATOR: In a 5-4 decision, the Supreme Court ruled against the reporters.

>> Branzburg answered the question, "Is there a constitutional protection here for reporters?"

And it said no, there is not.

There is no testimonial privilege that is available to the reporters that protects them from testifying anymore than there is one that would protect me as a private citizen from testifying.

>> I just wasn't going to buy that... buy that argument, so... >> BERGMAN: What do you mean, you weren't going to buy the argument?

It's called the Supreme Court for a reason.

>> I know, but there's always a way, you know.

I could not, as a practical matter, go back to my pals in the newsroom and say, "I can't protect you because the Supreme Court has taken all your protection."

You can't do that.

So I sent my family away, locked myself into a room in my apartment.

The air conditioning was turned off, and I sweated out five pounds and a theory how the Branzburg case actually created a reporter's privilege for reporters, even though it seemed to have done the exact opposite.

>> NARRATOR: The key to Goodale's argument was Justice Lewis Powell.

>> Powell says effectively, "Okay, I'm with you against the press on this case, "but in other cases, there should be an ability for the press to deal with the subpoenas."

He didn't spell out exactly what he meant.

So I said, "Well, look, if this other case is... "he's one and I've got four over here.

"Last time I knew, that made five, "and that's more than the four that voted against me.

"So if I get another case "that is perhaps a little different than Caldwell's case, "I will argue that those five votes create a reporter's privilege."

>> The Times intends to continue fighting for its reporters' right to keep their sources confidential, fighting both in the courts and through state or federal legislation.

>> Our theory was go back and fight this thing out state by state by state by state until we end up with enough body of law so that there's protection for reporters.

>> NARRATOR: As Goodale set to work, it was a heady time for reporters.

The Watergate reporting had helped take down a president, and the value of anonymous sources was never more clear.

>> It would have been totally impossible to have done the Watergate reporting and identified our sources.

>> BERGMAN: Weren't you subpoenaed during Watergate?

>> Yes.

>> BERGMAN: For your sources?

>> Yes.

There was a suit brought for the purpose of getting to us, among other things.

And so we were subpoenaed.

And the strategy had been gone over with the lawyers.

Our notes, my notes were transferred to the custody of Katharine Graham, the publisher of the Washington Post.

>> We called that the "grandmother defense" because if we suddenly gave all our documents to a woman who was in her 60s, then, you know, instead of Bernstein and Woodward, Katharine Graham is a whole lot better possessor on all... a lot more important witness.

>> As Bradlee said, "Wouldn't that be something?

"Every photographer in town would be down at the courthouse to look at our girl going off to the slam."

And Mrs. Graham was ready to go to jail because she understood the principle.

>> The principle is this: the government has all kinds of ways to get information.

It can eavesdrop, it can wiretap, legally, it can offer immunity to criminals in order to get them to testify.

What is the essential route to get information by the press?

And that is to offer a confidentiality.

So when people say, "Well, nobody should be above the law," spouses are above the law.

They don't have to give testimony against their spouse.

Lawyers don't have to.

Why?

Because there is a social, judicial benefit to having confidence imbued in certain relationships.

>> Hi, I'm Bob Woodward of the Washington Post.

>> Yes, yes, what is it?

>> NARRATOR: By the mid-1970s, journalists played as heroes in the popular imagination.

>> You tell me what you know, and I'll confirm.

>> What you had was a sea change in historical and social terms in terms of the news media.

People often think that judges are born in robes and they issue their decisions as if from, like, Moses, coming down from the Ten Commandments.

But they don't.

Judges operate in a historical and a social context.

And judges all across the country were very much affected by Watergate.

>> NARRATOR: And James Goodale was finding new success in his legal battle.

>> We came up with this idea that we, the reporters, should have a privilege, namely the reporters' privilege, not to cough up this information every time the government wants it.

>> NARRATOR: Across the country, reporters went to jail to protect their sources.

And over the next decade, many states passed legislation and lower courts ruled to protect journalists.

Today, 49 states recognize some degree of a reporter's privilege.

>> Some very creative media lawyers led by Jim Goodale were able to convince many judges, and we had a certain level of success over the years in getting subpoenas knocked out in civil cases and in... in criminal trials.

>> NARRATOR: Though there's never been a federal law establishing a reporter's privilege, the Justice Department uses a set of guidelines in its decision to subpoena journalists.

>> The guidelines are very clear.

A media subpoena should only be sought when all other avenues of investigation have been foreclosed, and only in exigent circumstances.

And exigent circumstances were explained to me to be grave national security matters.

>> BERGMAN: Emergencies.

>> Yeah, emergencies.

>> BERGMAN: Life and death.

>> Life and death.

>> NARRATOR: Mark Corallo was working in Attorney General John Ashcroft's Justice Department when the Plame investigation began.

Though Ashcroft was never asked to subpoena any reporters in the case, Corallo says it's unlikely that he would have.

He says he never saw Ashcroft approve a subpoena of a reporter for confidential sources in the time he worked there.

>> We were committed to not issuing one of these subpoenas.

>> BERGMAN: To the liberals out there watching, Attorney General Ashcroft always said no?

>> Attorney General Ashcroft always said no.

>> BERGMAN: "Do not subpoena the journalists."

>> Correct.

>> NARRATOR: But in the Plame case, Patrick Fitzgerald was determined to get reporters to cooperate.

He had worked out deals to get four reporters to testify.

Matthew Cooper and Judith Miller had refused, and the reporters had another problem.

Just as the Plame affair had begun, in an unrelated case, a federal judge in Chicago had dropped a bombshell.

>> Judge Richard Posner, who's a very influential judge, said, "I just wanted to be clear that I've reread the Branzburg case, "and all you judges out there "who've been saying for the last 30 years "that Branzburg provides some sort of privilege are wrong.

There is no privilege in Branzburg, period."

>> He caused a lot of trouble because he said, "Look, there's another way to look at it "other than what all these lawyers have done.

A reporter's got to testify."

>> BERGMAN: Well, the other way to look at it is the court ruled 5-4, there is no privilege... >> There's no privilege.

>> BERGMAN: ...and Powell was just saying it'd be nice if Congress passed a law or somebody did something to protect... >> Well, Powell was just blowing smoke.

>> BERGMAN: Right.

And you had taken the smoke and made it appear to be real.

That's what he's saying.

He called your bluff.

>> Well, I don't think it's a bluff, with all due respect.

>> NARRATOR: Bluff or no bluff, Cooper and Miller were forcing the question: would the courts back their decision not to testify?

>> My standard for cooperation was very high.

It was different from other people's.

Everybody has to make that call themselves.

But I knew what I could live with and what I couldn't live with.

>> Judy Miller's attitude about this was that it was important for at least someone to stand up and fight even if she wound up losing.

>> NARRATOR: The reporters did lose.

The Supreme Court refused to hear the case, and the final word was left with a lower court.

>> BERGMAN: The Appellate Court in that case spoke directly, spoke very, very clearly, and said Branzburg stands.

>> That's what they said, there's no ambiguity at all that there is no protection, the Court of Appeals in Washington said, for journalists in situations in which a grand jury seeks information in good faith from a journalist, period.

>> BERGMAN: Is it possible that given the bad facts in this case and given the decision to, in a sense, fight this on principle that in the end, what you did was make bad law?

>> It's possible.

It's possible.

>> BERGMAN: You got the Appellate Court to reaffirm Branzburg, which Goodale and... your friend Goodale and allies have been trying to avoid a decision like that for decades.

>> Yeah, um...

It just seems to me that there are some fights which have to be fought.

And sometimes, they have to be fought even if chances of winning are slight.

>> NARRATOR: On July 6, 2005, Matthew Cooper headed into the D.C. District Court where he would agree to testify.

>> What do we want?

>> Free press!

>> When do we want it?

>> Now!

>> NARRATOR: Pearlstine and Time magazine had given Fitzgerald Cooper's notes.

>> BERGMAN: Your reporter, Matt Cooper, he wasn't happy with your giving up his notes.

>> He disagreed with me.

He wished that I hadn't done so.

He viewed his conversation with Rove as a confidential exchange that ought to be protected.

He disagreed with me about it, and I think he would have been prepared to go to jail himself.

>> It is a sad time when two journalists who were simply doing their jobs and trying to keep confidences and report important stories face the prospect of going to prison for keeping those confidences.

>> It's the most difficult decision I've had to make in more than three decades in journalism.

And I say that with the understanding that lots of people whom I respect and admire would disagree with me.

>> Disgraceful.

Absolutely disgraceful.

I've talked about this with... with Norman.

We have a civilized disagreement.

Norman Pearlstine is in a very difficult political position in real life because he has to go to his board of directors, who are not First Amendment-niks and maybe not even media people who know a lot about media, and tell them that he's going to go in civil contempt.

I think, as a practical matter, that is very difficult for him.

>> As usual with Jim, a little learning is a dangerous thing.

I never went to the board.

I made the decision on my own in my capacity as editor-in-chief of Time, Inc.

In this particular case, involving a grand jury, involving a question of national security, involving White House officials who are not traditional whistleblowers but if anything were trying to undermine a whistleblower, and a situation where the name of the source was in our e-mail and available to several dozen people within Time, Inc., it seemed to me that as an institution, we had no choice but to turn over our notes in this case.

>> NARRATOR: Because the New York Times had not been in possession of Miller's notes, the government did not pursue a subpoena against the Times.

>> Are you confident justice will prevail on this one?

>> NARRATOR: The decision to cooperate or not was up to Miller, and the paper stood by her.

>> Good luck, good luck.

>> Thank you.

>> Yeah, go get 'em.

>> The underlying principle that we try to protect our sources including against subpoenas before grand juries is a good principle, but it's a very, very hard one to explain to the general public given both the problematic nature of the reporter and the problematic nature of the leak.

I think everybody wished that it was a cleaner case.

>> BERGMAN: But do you ever really get to choose?

>> No.

Which is why we ended up, you know, fighting this one as best we could.

>> NARRATOR: When Miller refused to testify, she was shackled and taken out the rear of the courtroom into a waiting police van, where she was driven to the Alexandria Detention Center in Virginia.

>> Here's a reporter who's not well-liked, generally, by the press establishment, who suddenly takes a position that is heroic to the press establishment.

>> Arianna Huffington, you wrote that Miller doesn't want to reveal her source at the White House because she is the source.

>> It was so complicated that there were even wags inside the New York Times who speculated that Judith Miller never had any sources.

>> "Miller's no fool.

"She understood the lesson of the Martha Stewart case: "when you find yourself covered with mud, "there's nothing like a brief stint in a minimum security prison to restore your old luster."

What a nasty... >> Definitely seems to be true.

>> But what a nasty thing to write.

>> BERGMAN: There's definitely a group of people who felt that you were becoming a martyr, that you were doing this to make up for the problems with the W.M.D.

coverage.

>> I didn't feel that I had anything to apologize for with my W.M.D.

coverage.

I knew why I was in jail, and I knew that I was in jail for a cause that I thought was essential to our profession.

So I was very comfortable with the decision.

But was it painful?

Yes.

Was it disappointing?

Yes.

Was it infuriating sometimes?

Yes.

>> NARRATOR: On September 29, 2005, after 85 days in jail, Judith Miller finally made a deal to provide limited testimony and was freed.

>> I heard directly from my source that I should testify before the grand jury.

>> NARRATOR: Soon after, she and the New York Times would part ways.

>> When we finally ended up relenting and Judy ended up testifying, I felt like we may have been a little too quick to charge out on the limb and vociferously defend the principle.

I mean, there's, you know, part of me that wonders whether we might have gotten a deal at the beginning comparable to the one that we got at the end.

>> BERGMAN: Sounds like something you regret, the whole situation.

>> Well, there's certainly aspects of it I regret.

I'm... you know, the principle is the principle.

And I'm...

I would rather work at a place, you know, that stands up for that principle than one that doesn't.

>> On July 2003, the fact that Valerie Wilson was a C.I.A.

officer was classified.

Not only was it classified, but it was not widely known outside the intelligence community.

>> NARRATOR: On October 28, 2005, almost two years after taking over the case, Special Prosecutor Patrick Fitzgerald faced the media.

>> Valerie Wilson's cover was blown in July 2003.

>> NARRATOR: In the end, no one was charged with outing Valerie Plame.

>> Mr. Novak was not the first reporter.

>> NARRATOR: Instead, the Vice President's chief of staff, Scooter Libby, was indicted on charges of perjury and obstruction of justice.

>> In fact, Mr. Libby was the first official known to have told a reporter when he talked to Judith Miller in June of 2003 about Valerie Wilson.

>> NARRATOR: But it would turn out there was still more to the story.

The Plame investigation had one last twist.

>> When Fitzgerald said that Judy Miller was the first to learn about this from Scooter Libby, the Vice President's chief of staff, I realized I was the first to learn about it.

>> NARRATOR: Woodward's leaker was also the primary source for Novak's column, the administration official who blew Plame's cover in the first place.

>> Novak wrote he learned of it from somebody who is not a partisan gunslinger.

It was an offhand remark.

That's exactly the way I learned it.

>> NARRATOR: The leak had not come from Bush's inner circle, but from a dissenter who had questioned the administration's march to war: then Deputy Secretary of State Richard Armitage.

>> It was a classic case of doing a long interview and Armitage gossiping at the end.

There was a lot of energy and airtime and ink spent over something that really didn't amount to a violation of the law.

There is no echo of Watergate.

>> Jury selection got under way today in the criminal trial of Scooter Libby... >> Jurors were shown the Cheney talking points... >> NARRATOR: With the Libby trial back in the news, details are emerging about the extent to which the Vice President's office directed the effort to discredit Joseph Wilson.

>> The Vice President and Scooter Libby were discussing the Wilsons almost every day for two weeks... >> BERGMAN: What are we to make of Joe Wilson and his complaint that the government of the United States retaliated against him?

Do you believe that the White House was out to get him?

>> Yeah, and guess what?

Joe Wilson, move over.

The White House is out to get a lot of people.

And every White House is.

It's part of the tug of war of policy that you try to advance your interests and undermine your opponents'.

If you're going to start criminalizing those kind of leaks, which is what the nation's capital is based on, you're going to be throwing an awful lot of reporters in jail, and maybe some... an awful lot of government officials.

>> The British government has learned that Saddam Hussein recently sought... >> NARRATOR: What started as a campaign to spin the press on the road to war... >> We know for a fact that there are weapons there.

>> NARRATOR: ...became a muddled story about official leaks, political hardball, and questions about a cover-up at the highest level of the White House.

But in the end, the lasting effect of what was called "Plamegate" may be what it means for the institution of the press.

>> I think the Bush administration saw that a top reporter for the number-one newspaper in this country could go to jail for weeks and nothing would happen, in essence.

And I think that emboldened them to go after the press in other cases, as they have, threaten other reporters with jail, as they have, because they saw this as a green light.

They saw this, that they could get away with it.

And now it's, "Katie, bar the door."

>> NARRATOR: Next time on Frontline, the battle continues... >> BERGMAN: So you're ready to go to prison?

>> Well, "ready" is perhaps not the appropriate word.

>> For 30 or more years, there had been a certain assumption about the government and the press.

And suddenly, in the last couple of years, that's changed.

>> BERGMAN: How did you first find out that the F.B.I.

was interested in what you may have shot?

>> NARRATOR: ...government secrets exposed... >> It used to be that you could depend upon the moral character of news media and the commitment and loyalty to the United States.

>> There can be no excuse for anyone entrusted with vital intelligence to leak it, and no excuse for any newspaper to print it.

>> NARRATOR: ...and the White House fights back.

>> It's the President of the United States saying, "If you publish this story, you will have blood on your hands."

>> NARRATOR: Next time on Frontline, part two of "News War."

>> NARRATOR: In two weeks on Frontline... >> Anyone can do journalism.

>> NARRATOR: ...there are more sources of news than ever before.

>> Ever feel like the 6:00 news just ain't cutting it?

>> NARRATOR: But what is happening to the news?

>> The new media are investing almost nothing in original reporting.

>> The economic underpinning for all these news organizations is changing.

>> It really has been hard to cover the world.

>> NARRATOR: Can journalism survive?

>> Who's going to pay for the news?

>> NARRATOR: Coming in two weeks, part three of "News War."

>> To order this episode of Frontline's News War series on videocassette or DVD, call PBS Home Video at 1-800-PLAY-PBS.