Journalist Jailed for Not Revealing Source to Court

A New York Times reporter was jailed Wednesday for refusing to submit to questioning by a special prosecutor investigating possible wrongdoing by the Bush administration, but a Time magazine reporter avoided jail at the last minute by agreeing to cooperate with the government.

U.S. District Judge Thomas F. Hogan ordered Judith Miller, 57, imprisoned until she agreed to testify in an investigation into the naming of a CIA operative, declaring that the rights of journalists to gather news and protect confidential sources must occasionally yield to the power of prosecutors to demand testimony and investigate suspected crimes.

In the test of press freedoms, Miller’s lawyers had contended that the Pulitzer Prize-winning reporter should not be sent to jail because she was exercising her 1st Amendment rights. But Hogan said journalists had no greater rights than other citizens when called upon to testify in federal proceedings.

The judge’s order was the culmination of an emotional court hearing in which the fates of the two journalists took dramatically different turns. While Miller braced for jail, Time reporter Matthew Cooper surprised the court by announcing that he would agree to testify in the case.

Both had been held in civil contempt of court by Hogan for their refusal to identify sources in their investigations of the possibly illegal disclosure of the identity of a CIA agent by a Bush administration official.

Cooper said a source in the CIA leak investigation had phoned him Wednesday morning to release him from his pledge of confidentiality and had encouraged him to testify. That source has not been identified.

White House political strategist Karl Rove has acknowledged speaking with Cooper in the past, but has denied unmasking the CIA agent. Asked whether Rove was the source who called the Time reporter to waive his confidentiality, his lawyer, Robert Luskin, said Wednesday night that the strategist had “not contacted Cooper about this matter,” but declined to comment further.

“I have a person in front of me who is defying the law and may be obstructing justice,” Hogan said in pronouncing judgment on Miller. “The court has to take action.” He said he feared that letting Miller avoid testifying would put the judicial system “on a slippery slope to anarchy.”

Miller was escorted from the courtroom by U.S. marshals. Hogan said she would be confined in the Washington area. She reportedly was seen entering an Alexandria, Va., detention center.

Unless she agrees to talk, Miller will be imprisoned for the duration of the term of the federal grand jury investigating the leak case, about four months. But Hogan raised the possibility that she might be held in criminal contempt if she continued to defy the order to testify, which could add months to her sentence.

The jailing drew widespread criticism from media groups, which said it would make it harder for journalists to do their jobs and to cultivate confidential sources willing to share secrets about government misconduct. They said it would also embolden prosecutors to use the power of the courts to coerce journalists to share their reporting with investigators to help them do their jobs.

Editors at the New York Times supported their reporter, saying she had made a brave and principled choice.

“There are times when the greater good of our democracy demands an act of conscience,” Publisher Arthur Sulzberger Jr. said in a written statement. “Judy has chosen such an act in honoring her promise of confidentiality to her sources.”

Although the jailing of reporters is rare, Hogan’s order exposed Miller to what may be one of the longest jail terms that a journalist has faced for refusing to reveal confidential sources.

Freelance author Vanessa Leggett served a record 168 days, starting in 2001, for refusing to disclose notes and sources used in preparing a book about a murder case in Houston. A Los Angeles Times reporter, William Farr, was jailed for 46 days in 1972 for refusing to reveal sources for a story he wrote for another paper about the Charles Manson trial.

Outside the courthouse Wednesday, Cooper declared that it was “a sad day not only for journalists, but for our country.”

He said he had intended to continue to defy the court if he had not received the last-minute reprieve from his source. “I gave my word to a source and I kept it for two years,” he said. “This morning, in what can only be described as a stunning set of developments, that person agreed to give me a personal, unambiguous, uncoerced waiver that I could speak to the grand jury.”

The move followed a decision last week by his employer, Time Inc., which separately had been held in contempt in the case, to turn over notes and e-mails that in effect revealed Cooper’s source. Hogan said Wednesday that, because of Time Inc.’s action, the court would vacate the contempt order, which had exposed the publishing company to a potentially massive fine.

Miller’s decision to use the case as a test of journalists’ rights has been criticized even by some media experts, who have questioned whether the sources she and Cooper used were worth protecting.

Critics have noted that in this case, the journalists have not been protecting a principled person exposing wrongdoing -- the usual justification for protecting sources -- but rather someone who might have deliberately endangered a U.S. undercover operative in an act of political retribution.

The special prosecutor, Patrick J. Fitzgerald, has been investigating the circumstances surrounding a July 14, 2003, column by syndicated journalist Robert Novak that identified Valerie Plame as a CIA agent.

Plame is the wife of Joseph C. Wilson IV, a former diplomat, who eight days earlier had written an article accusing the Bush administration of using faulty intelligence in deciding to wage war in Iraq.

Fitzgerald is investigating the possibility that administration figures leaked Plame’s status to Novak and other journalists as retaliation for the article her husband wrote.

Intentionally revealing the identity of a CIA operative is, in some cases, a violation of federal law.

Miller, who never wrote about the case, was subpoenaed by Fitzgerald to testify about conversations she had with “a government official” about Wilson and Plame between the publication of the Wilson article and that of the Novak column. Fitzgerald has asserted that the unnamed official has given a general waiver permitting Miller to testify; the journalist has said she does not believe the waiver was signed voluntarily.

Cooper has been of interest to Fitzgerald because of two articles he wrote after the Novak column appeared, including a July 17, 2003, piece on the Time website in which he asserted that the administration had declared war on Wilson, and that “some government officials have noted to Time in interviews” that Plame was a CIA official.

Rove, Bush’s political strategist, has acknowledged speaking with Cooper around that time, but has denied through his lawyer that he revealed Plame’s identity or shared confidential information.

Cooper declined Wednesday to say whether he spoke with Rove, or what he was planning to reveal to Fitzgerald, saying he had been asked to keep those conversations private for now.

Though Novak has not commented on the matter, it is believed that he probably spoke to Fitzgerald and the grand jury after his sources gave him permission to do so.

At Wednesday’s hearing, Robert Bennett, a lawyer for Miller, argued that she should not be sent to jail because there was no possibility that she would relent and reveal her source, and that her incarceration therefore would be merely punitive.

He also took jabs at Fitzgerald and his team, questioning whether they would ever charge anyone for leaking Plame’s identity. “I have this nagging feeling that Judy Miller may be the only person going to jail in this case,” Bennett told Hogan. “That would be an absolute tragedy.”

“Judy Miller did not commit a crime,” Bennett said. “She did not write an article.”

When Hogan noted that the law requiring journalists to testify before grand juries was settled by the Supreme Court in 1972, Bennett retorted that the Dred Scott ruling upholding slavery was also on the books for years.

“The law changes,” Bennett said.

Miller, addressing Hogan, acknowledged that the judge had a right to send her to jail, but said she could not break her word to her sources.

“I do not want to go to jail, and I hope you will not send me,” she said. “But I feel that I have no choice, both as a matter of personal conscience and to stand up for the many who share my views and believe truly in a vigorous and independent press.”

Fitzgerald argued that Miller was asking for rights that were not even accorded the most senior law enforcement officials in the country.

Hogan was in no mood to entertain arguments of leniency. He said that, notwithstanding the steadfast claims by Miller that she would never reveal her sources, he was required under the law to see whether imprisonment would have a “coercive” effect on her thinking.

As he announced his judgment, marshals moved into position behind Miller, and when the proceeding concluded, escorted her out a side door. She hugged her lawyers. Her husband gave her a wave from the courtroom gallery.