For two prominent journalists at two of America’s top publications it’s come to this: pondering the advantages of home confinement over federal prison, hearing warnings about jail house food and institutional underwear, and listening to colleagues joke about the possibility of a presidential pardon.
Matthew Cooper of Time magazine and Judith Miller of the New York Times expect to learn Monday whether the U.S. Supreme Court will hear their case.
If the court declines to review the case of the two journalists -- held in contempt by a lower court for declining to identify their confidential sources -- they could land in jail within days and be forced to stay there for as many as 18 months.
The high court’s acceptance of the case would mean a reprieve, at least until a final ruling, likely to come next year.
Cooper and Miller have been the most prominent in a recent pageant of journalists jailed or fined for ignoring court orders to reveal sources. Cooper has gained acclaim as Time’s dogged, wisecracking White House correspondent; Miller has been praised, and criticized, for pushing forward stories about weapons of mass destruction.
Many in their profession, and outside it, see the case as a harbinger of future journalistic freedoms.
Bill Keller, executive editor of the New York Times, recently described how a colleague explained to a group of Russian journalists visiting the Times how Miller might go to jail for refusing to reveal the identity of confidential sources.
“The Russians were flabbergasted,” Keller said, “since they have grown up regarding our freedoms with envy.”
But journalists should not be the only ones concerned about the possible jailing of the reporters, Keller said in an e-mail response to questions on the case.
“I think the likely consequence, if reporters are not allowed some protection, will be an erosion of the public’s ability to know what the government and other powerful institutions are up to,” Keller said. Sources would not dry up entirely, he said, but he worried that “some witnesses of wrongdoing will be intimidated into silence, and some important stories will not be told.”
Chances that the high court will take the case received a boost last month when attorneys general in 34 states and the District of Columbia urged a review. The states’ chief law enforcement officers could be especially persuasive in the case because they typically fight against any limits on their access to witnesses.
The bipartisan group, which included 14 Republicans, said lower courts had issued a welter of confusing and contradictory rulings that only the Supreme Court could help clarify.
“A free and open democracy requires a free and open press,” said Greg Abbott, the Republican attorney general of Texas. “Texas and virtually every other state in the nation recognize some form of a reporter’s privilege, and I urge the Supreme Court to do the same.”
The convoluted series of events that could put Cooper and Miller in jail began to unfold two years ago, when retired diplomat Joseph C. Wilson IV accused President Bush of “misrepresenting the facts on an issue that was a fundamental justification for going to war.”
The former ambassador was one of the first to debunk Bush’s accusation in the 2003 State of the Union address that Saddam Hussein had sought uranium in Africa for nuclear weapons.
The administration made a concerted effort to undermine Wilson’s charge. Sources supporting Bush said that Wilson had made a cursory review in Niger and that he was able to make the trip only because of nepotism by his wife, a CIA official assigned to monitor weapons of mass destruction.
These claims were floated to several reporters, but columnist Robert Novak was the first to name Wilson’s wife, Valerie Plame, as a CIA operative.
That, in turn, attracted the attention of then-Atty. Gen. John Ashcroft, who ordered an investigation into whether administration officials broke the law by identifying a covert agent, in violation of the Intelligence Act of 1980. Ashcroft appointed a special prosecutor, Patrick J. Fitzgerald. He has aggressively pursued the identity of the administration leakers.
Several prominent journalists who worked on the Plame story received subpoenas. A few -- such as Walter Pincus of the Washington Post and Tim Russert of NBC -- avoided the possibility of jail when their sources agreed the journalists no longer had to keep their identities secret. It remains a mystery whether Novak had to testify. He has declined to comment.
Miller would not ask her sources to waive their anonymity. She said intelligence officials might feel coerced into admitting they had talked to a reporter. Cooper initially answered the prosecutor’s questions, with the agreement of one of his sources, but the reporter declined to answer when Fitzgerald came back for more information.
As a result, U.S. District Judge Thomas F. Hogan cited Miller -- who never wrote about the Plame case -- and Cooper for contempt. Hogan’s action has been upheld by two appellate panels, leading to the Supreme Court appeal.
Legal experts had held out little likelihood that the court -- which discussed the matter in closed session Thursday -- would take the case.
In 1972, the court ruled that reporters had no special privilege to refuse to answer questions before a federal grand jury. But the 5-4 decision, which included ambivalent concurrence by one justice, left open the possibility that reporters could protect their sources under other circumstances.
The recent revelation of the identity of “Deep Throat” -- the whistle-blower on corruption in Nixon White House -- might be seen as a reminder of the importance of secret sources.
But American journalists today live in a different climate, with multiple examples of prosecutors and judges trying to force them to identify individuals who spoke only with the guarantee that their identities would be kept secret.
Providence, R.I., television reporter Jim Taricani recently completed four months of home confinement for contempt after he declined to reveal who leaked him a videotape of a city official taking a bribe.
Five reporters, including one from the Los Angeles Times, faced contempt citations and $500-a-day fines for refusing to disclose who in the government talked to them about Wen Ho Lee, the former nuclear physicist once suspected of espionage. That case is under appeal.
“The stakes are very, very high right now,” said Rep. Mike Pence (R-Indiana) cosponsor of legislation that would help reporters protect their sources. “Without protection, the possibility there will be no more Deep Throats is great. And without those sources, there is less opportunity to root out public corruption.”
Pence said that though he did not wish jail time on anyone, the prospect of Cooper and Miller landing in jail “may be just the wake-up call that the public and the Congress need” to grant reporters a privilege similar to the ones that protect clients’ communications with doctors and lawyers.
Several 1st Amendment lawyers have said the facts in the Cooper-Miller case aren’t ideal for the journalists to prevail in court. More appealing, they said, would have been a case involving a whistle-blower who helped a reporter expose government corruption or a defective product.
After speaking extensively about their case in the past, Cooper and Miller kept a lower profile last week. Cooper declined to comment; Miller did not respond to an interview request.
Cooper, 42, who has appeared as a stand-up comedian in the Washington area, has greeted his fate with characteristic gallows humor, colleagues say. They quip that his best hope is a pardon from Bush. He has worried about how he would explain a jail sentence to his 6-year-old son.
One colleague said Miller, 57, had handled the uncertainty of the situation with grace, adding: “I think she is increasingly nervous about what is going to happen, like anyone would be.”
Lawyers who have closely watched Fitzgerald’s investigation said they thought the Republican prosecutor appeared to be bending over backward to show he was thoroughly exploring potentially illegal leaks by a Republican White House. But an indictment for exposing Plame now seems unlikely, they said, because her identity was already known in Washington and because it would be difficult to prove an intent to harm U.S. intelligence.
Legal experts said it seemed more likely that Fitzgerald would seek perjury or obstruction of justice charges.
This year, Miller and Cooper appeared on a panel at the National Press Club to discuss press freedom. At a lunch afterward, they got an idea of what their future might hold from book author Vanessa Leggett, who spent about six months in jail for refusing to reveal sources she interviewed about the slaying of a Houston socialite.
Leggett described telling drug dealers and smugglers what she was “in” for. “It all sounded so wishy-washy and implausible to them,” she said. “They decided I must be some sort of spy or informant.... They couldn’t believe that I had been held that long and I wasn’t charged with any crime.”