Justices Keep Cell Door Open for 2 Reporters

The Supreme Court cleared the way Monday for the jailing of two reporters who refused to reveal confidential sources to a prosecutor investigating how the name of an undercover CIA operative ended up in a newspaper column.

The high court, without comment, declined to hear the appeal of Judith Miller of the New York Times and Matthew Cooper of Time magazine, who had argued that the 1st Amendment protected them from having to identify their sources to special prosecutor Patrick J. Fitzgerald in the politically charged case.

Miller and Cooper were held in contempt last year for refusing to cooperate in the investigation; they were sentenced to prison for up to 18 months, pending appeal.

The Supreme Court action sets the stage for a possibly rapid denouement. Absent a last-minute cooperation agreement -- or Fitzgerald backing down -- the journalists could be jailed in a matter of days.

Their two news organizations on Monday filed court papers seeking a hearing Wednesday before Thomas F. Hogan, the federal district judge in Washington who held the reporters in contempt in October.

The court filings indicate that lawyers for the journalists want to raise new arguments that might forestall the possibility of jail, as well as “personal and medical considerations” that the court should consider in imposing “suitable” confinement should those arguments fail.

Hogan did not immediately respond to the request.

“I am extremely disappointed,” Miller said in a statement. “Journalists simply cannot do their jobs without being able to commit to sources that they won’t be identified. Such protection is critical to the free flow of information in a democracy.” Reached by phone, Miller declined to comment further.

Miller, 57, joined the New York Times’ Washington bureau in 1977 and was part of a team that won a Pulitzer Prize in 2002 for a series on Osama bin Laden and Al Qaeda. Although Miller gathered information about the CIA matter, she never wrote about it.

Arthur Sulzberger Jr., the paper’s publisher, said: “It is shocking that for doing some routine news gathering on an important public issue, keeping her word to her sources and without our even publishing a story about the CIA agent, Judy finds herself facing a prison sentence.”

In a written statement, Time magazine cited what it said were changes in the investigation and the possibility that the disclosure of the agent’s name may not have violated federal law.

Disclosing an agent’s name is illegal only if the leaker does so deliberately, knowing that the information is classified and that the government has taken steps to keep the agent’s identity confidential.

Some people close to the case believe it will be difficult for Fitzgerald to prove that the leak of the CIA operative’s identity was illegal, and that he may be preparing lesser perjury or obstruction charges. Such an investigation “may not rise to the level that justifies disclosure of information from or about a reporter’s confidential sources,” Time declared in its statement. Cooper, 42, who has served as a White House correspondent for Time since June 2003, did not return a phone message left at his Washington office. A spokeswoman for Time, Dawn Bridges, said he was not commenting on the advice of counsel.

Fitzgerald, who has said the testimony of Cooper and Miller is essential to completing his investigation, issued a statement saying he was eager to move ahead.

“Now that the legal obligations of the reporters are settled and all appeals exhausted, we look forward to resuming our progress in this investigation and bringing it to a prompt conclusion on behalf of the citizens we represent,” the prosecutor said. He has said in court papers that the investigation was complete as of last fall but for the testimony of the two reporters.

Press advocates had hoped that the Supreme Court would grant the Miller-Cooper appeal in order to reexamine a 1972 decision by the court that journalists had no special privilege to withhold source information from grand juries.

The high court’s refusal to hear the appeal comes at a time when other journalists are running into trouble with the law for refusing to identify their sources, including a Rhode Island television journalist who recently completed four months of home confinement for contempt for refusing to reveal who gave him a copy of a videotape of a local official taking a bribe.

In Washington, five reporters -- including Bob Drogin of the Los Angeles Times -- are battling $500-a-day fines imposed by a federal court for declining to name sources they used in stories about a former nuclear weapons scientist who pleaded guilty to mishandling classified information.

Fitzgerald, an expert in terrorism who is also the U.S. attorney in Chicago, was appointed in December 2003 to investigate how the name of CIA operative Valerie Plame made its way into a July 14, 2003, column by Robert Novak, and whether someone in the White House may have leaked her identity, violating a federal law that protects the identities of covert agents.

Plame is married to former envoy Joseph C. Wilson IV, who, eight days before the Novak column, wrote an opinion article in the New York Times that took issue with a claim by President Bush in the January 2003 State of the Union speech. Bush said Iraq was attempting to buy weapons-grade uranium in Niger, but the White House later recanted the claim, which was part of the bungled intelligence it used to justify the war in Iraq.

Among other avenues, Fitzgerald has been investigating allegations that someone in the White House called up a number of prominent journalists, besides Novak, and offered up the identity of Plame in an effort to discredit Wilson. Wilson’s trip to the African country was made at the behest of the CIA; Novak insinuated in his column that Plame arranged the mission, a contention that Wilson denied.

But nearly two years after the leak, Fitzgerald has yet to charge anyone other than the two journalists. Although Miller never wrote about the case, Cooper coauthored an article on the Time website that took to task whoever unmasked Plame.

Novak, meanwhile, appears to have emerged from the probe unscathed. Through his lawyer, he has declined to comment, although the fact that Fitzgerald has said his investigation is complete has led most observers to believe that the columnist has talked with the prosecutor.