Time magazine yielded to a court order yesterday and agreed to turn over documents that identify a confidential source, a rare move by a major news organization that Time said it hopes will keep one of its reporters out of jail.
The decision to turn over reporter Matthew Cooper's notes and e-mails -- over his objections -- represents a victory for special prosecutor Patrick J. Fitzgerald, who has pursued access to information about journalists' conversations with confidential sources as he investigates whether senior administration officials knowingly identified an undercover CIA operative to the media. It leaves the New York Times as the only news organization still insisting that its reporter would serve jail time rather than comply with an order by Chief U.S. District Judge Thomas F. Hogan to cooperate with prosecutors.
Time said in a statement yesterday that "the same Constitution that protects the freedom of the press requires obedience to final decisions of the courts and respect for their rulings and judgments. That Time Inc. strongly disagrees with the courts provides no immunity. . . . Our nation lives by the rule of law . . . none of us is above it."
The Cooper documents are primarily electronic notes and e-mails stored on Time's computers.
The decision spelled a kind of surrender to many reporters and editors. Courts have forced fewer than a dozen reporters or news organizations to turn over private notes in the past two decades, according to press advocacy organizations, and none could recall an instance of a news organization doing so against the wishes of its reporter.
But Time's editor in chief, concerned that the magazine should not consider itself above the law in an investigation that involves national security issues and grand jury proceedings, ultimately decided to cooperate with the probe.
"Matt believed he'd granted confidence to his sources and ought to protect that," Norman Pearlstine said in an interview. "I respect his position, but as editor in chief, I have an institutional view of how a journalism organization ought to behave" in a case such as this.
Cooper said he regrets Time's choice to give Fitzgerald his notes, which the magazine considers its property. "For almost two years, I've protected my confidential sources even under the threat of jail," Cooper said in an e-mail response to a question. "So while I understand Time's decision to turn over papers that identify my sources, I'm obviously disappointed."
The Times, whose reporter, Judith Miller, could be incarcerated as soon as Wednesday, also expressed regret. "We are deeply disappointed by Time Inc.'s decision to deliver the subpoenaed records," Publisher Arthur Sulzberger Jr. said in a statement.
Fitzgerald's investigation began in January 2004, six months after the name of CIA operative Valerie Plame appeared in a syndicated column by Robert D. Novak. It centers on whether Plame's identity was knowingly leaked in retaliation for criticism of the Bush administration's rationale for war in Iraq leveled by her husband, former ambassador Joseph C. Wilson IV.
On Wednesday, with appeals of Hogan's October order exhausted, the judge warned Cooper and Miller that they must answer Fitzgerald's questions or face jail. The Supreme Court had refused on Monday to hear their appeal.
Miller did some reporting for a story but never wrote an article. She has maintained she intends to go to jail rather than reveal her source -- though Fitzgerald has indicated in court filings that he already knows that official's identity. Cooper's lawyers have said in court that he is prepared to go to jail as well.
But yesterday, Time said in its statement that it expects the release of Cooper's notes to "obviate" the need for him to answer Fitzgerald's questions and appear before a grand jury, removing the threat of jail. Fitzgerald may still demand that Cooper answer questions, however, leaving him the unenviable choice of complying or going to jail to protect a source whose identity had already been revealed.
A spokesman for Fitzgerald said the special prosecutor had no comment on his plans regarding Cooper. In court Wednesday, Fitzgerald did not waver in urging that Cooper be required to comply. He predicted that if Time handed over the notes, "that may sway Mr. Cooper to comply" with his subpoena.
The magazine, as part of a publicly traded corporation, Time Warner, is in a different legal position than an individual facing a court order, press advocates said. If corporate directors decided to defy an order, they could be accused of violating their fiduciary and legal duties to the company and become vulnerable to shareholder lawsuits.
Pearlstine said financial concerns had not influenced his decision, which he said he made without consulting Time Warner. "We were facing $1,000 a day -- that to me was not an onerous burden," he said. Hogan has left open the possibility of increasing the size of the penalty.
Edward Wasserman, a professor of journalism ethics at Washington and Lee University, called the results of the case a "disaster" for the media.
"Time Inc. appears to have caved completely, leaving the New York Times alone in resisting the subpoenas," he said. "And all for what? To support the principle that the political hacks who used a compliant columnist to attack a whistle-blower and destroy his wife's career deserve to have their identities concealed."
But Gene Policinski, executive director of the First Amendment Center, a free-speech advocacy organization based in Washington and Nashville, said the divergent positions of Time and the Times mirror reporters' views on the use of confidential sources.
"One of the aspects of a free press is we don't have a lockstep approach," Policinski said. "I have no doubt many reporters will not like Time's decision. But that's every journalist's decision to make under the First Amendment."
in the Valerie Plame leak case.