2 Reporters in Leak Case Given 48 Hours to Argue Against Jailing

Two reporters told a federal court judge yesterday that they are prepared to spend four months in jail rather than answer questions about their confidential government sources, and the judge said that he may order them incarcerated as soon as next Wednesday.

At a packed court hearing yesterday, Chief U.S. District Judge Thomas F. Hogan chided Matt Cooper of Time magazine and Judith Miller of the New York Times for seeking more time to convince him that they should not be jailed. The two have refused to answer prosecutors' questions in an investigation of whether federal officials illegally disclosed the identity of undercover CIA operative Valerie Plame.

Hogan gave the reporters' attorneys 48 hours to file documents explaining why the pair should not face the penalty he levied nine months ago. He scheduled a hearing for Wednesday to make a final decision.

"The time has come," he said. "If people got to decide which court orders they wanted to obey, we would have anarchy."

Cooper and Miller were found in contempt of court in October for refusing to answer questions from special prosecutor Patrick J. Fitzgerald about their conversations with anonymous government sources in the summer of 2003. Fitzgerald's investigation focuses on whether senior Bush administration officials knowingly leaked Plame's name to syndicated columnist Robert D. Novak after her husband, former ambassador Joseph C. Wilson IV, alleged in a Times opinion piece that the Bush administration had twisted intelligence information to make the case for war in Iraq.

Cooper and Miller both did some reporting on the issue, though Miller never wrote a story.

Hogan postponed the penalty as the reporters appealed. On Monday, those appeals ran out when the Supreme Court refused to hear their case. The jail term is set to last for the four months remaining in the current grand jury session.

Yesterday, Hogan questioned the reporters' assertions that they are keeping a promise not to identify a confidential source. In appellate court filings, Fitzgerald has indicated that he knows the identity of Miller's source and that the official has voluntarily come forward.

"The sources have waived their confidentiality," Hogan said. "They're not relying on the promises of the reporters. . . . It's getting curiouser and curiouser."

Attorneys for Miller and Cooper did not respond directly. They have said the investigation appears to have changed from a probe of whether officials identified a covert agent to whether they perjured themselves in testimony to prosecutors. The latter, they said, does not justify jailing reporters.

Fitzgerald declined to comment, but in court papers unsealed yesterday he said the case remains unchanged and focuses on potentially serious criminal misconduct.

Fitzgerald urged the judge to jail the reporters as soon as possible and to start enforcing a $1,000-per-day penalty he had levied against Time.