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.
"We shouldn't enable people to think court orders are optional," Fitzgerald said. "When President Nixon got the order to turn over the [White House] tapes, he didn't say, 'Let me think about my alternatives.' "
"This case is not about a whistle-blower," Fitzgerald added. "It's about potential retaliation against a whistle-blower."
Cooper's lawyers left open the chance that he could avoid jail if Time turns over his notes about conversations with government sources. Time lawyers said that if the notes identify the government source, Cooper might no longer have a practical reason to keep silent. Fitzgerald agreed.
"That might sway Mr. Cooper to comply," he said.
Lawyers for Time asked Hogan yesterday for time to review their options, saying that they were "considering" turning over the notes. Hogan replied that if Time continues to refuse, he will assess a retroactive fine of $270,000, which he said reflects the wealth of the magazine's corporate owner, Time Warner.
Cooper declined to answer questions after the hearing. He later told Reuters that he would rather Time not turn over his notes but acknowledged that the magazine had its own obligations to consider. Miller declined to comment as she left court.
Plame's name first appeared in Novak's column on July 14, 2003. He wrote that two anonymous government sources had told him that Plame had recommended her husband for a CIA mission to assess whether Iraq was attempting to purchase uranium for use in a nuclear weapons program. Novak has refused to comment on whether he cooperated with Fitzgerald. Yesterday, in an interview on CNN's "Inside Politics," Novak said he is still barred from talking about the investigation but said he will write about it when it ends. He said he thinks the facts will surprise people.
"I deplore the thought of reporters -- I've been a reporter all my life -- going to jail for any period of time for not revealing sources." he said. "They are not going to jail because of me . . . and those people who say that don't know anything about the case."
Four other reporters, including Cooper and The Washington Post's Walter Pincus and Glenn Kessler, have answered limited questions from prosecutors that did not involve identifying confidential sources.