N.Y. Times Reporter Jailed for Refusing to Reveal Source
Time Magazine's Cooper Agrees to Testify, Saying Source Freed Him From Promise 'In Somewhat Dramatic Fashion'
By William Branigin
Washington Post Staff Writer
Wednesday, July 6, 2005; 4:09 PM
A federal judge today ordered the jailing of a New York Times reporter for refusing to divulge a confidential source, but a Time magazine reporter facing possible jail time in the same case reversed course and agreed to testify before a grand jury investigating the leak of a CIA agent's identity.
Judith Miller, a national security correspondent for the New York Times, told U.S. District Judge Thomas F. Hogan that she could not break her word in order to stay out of jail. Hogan then ordered her taken into custody immediately for civil contempt of court and incarcerated in the Washington area. She is expected to serve jail time that could last as long as the grand jury continues investigating, possibly until late October.
"This is a chilling conclusion to an utterly confounding case," New York Times executive editor Bill Keller said outside the courthouse after today's hearing.
Matthew Cooper, a White House correspondent for Time, avoided jail when he told U.S. District Judge Thomas F. Hogan shortly before his appearance in U.S. District Court in Washington that his source had specifically released him from any obligation to protect the source's identity.
"I am prepared to testify," said Cooper, who wrote an article about the leak of CIA agent Valerie Plame's identity.
Miller, however, stood by her refusal to testify before the grand jury or provide any information to prosecutors in the case. Miller's testimony had been sought by special prosecutor Patrick J. Fitzgerald even though she never wrote about Plame.
The case has stoked controversy over whether the First Amendment protects reporters who refuse to reveal confidential sources, even in defiance of court orders.
In a court filing yesterday, Fitzgerald urged Hogan, chief judge of the U.S. District Court for the District of Columbia, to order jail time for both Cooper and Miller if they continued refusing to testify before the grand jury.
Fitzgerald argued that Cooper should be compelled to testify even though his editors had already turned over notes and e-mails that identified his sources for an article he wrote about the leak. The prosecutor wrote that "after reviewing the documents provided by Time, Inc., Cooper's testimony remains necessary for the Special Counsel's investigation." He did not elaborate on that point.
Fitzgerald also argued against Cooper's request for home confinement or, failing that, incarceration at a specific federal prison camp -- rather than the D.C. jail -- if the judge orders him detained for refusing to testify.
Cooper had argued in a July 1 filing that his grand jury testimony "would be duplicative and unnecessary" since Time had already provided the information -- against his wishes.
In a separate court filing yesterday, Fitzgerald had reserved his toughest criticism for Miller, whose newspaper has backed her refusal to testify on grounds that she must keep promises not to identify confidential sources in order to preserve access to high-level informants and uphold the public's "right to know."
Miller argued that sending her to jail would not change her refusal to testify, which was "based on journalistic principle grounded on the First Amendment," and would "result only in punishment rather than effective coercion." She also contended that, alternatively, "no more than a very restrictive form of home detention" would be appropriate. If incarceration were "deemed absolutely necessary," her lawyers argued, she should be sent to the federal prison camp for women in Danbury, Conn.
Fitzgerald said Miller's arguments were contradictory and suggested that continuing to defy the court's October 2004 order to testify would go beyond civil contempt and amount to "a crime," possibly exposing her to "subsequent prosecution for criminal contempt."