Lawyers for Time magazine reporter Matthew Cooper yesterday urged a federal judge not to jail him for refusing to discuss his confidential sources with a prosecutor, arguing in a court filing that there is no need for his testimony now that his employer has turned over his notes, which identify the sources.
Attorneys for New York Times reporter Judith Miller, who, like Cooper, faces four months in jail for defying Chief U.S. District Judge Thomas F. Hogan's order to cooperate with a special prosecutor's investigation, also urged Hogan yesterday not to jail her. In papers filed yesterday, her lawyers said that because she intends to go to jail rather than disclose the name of her source, incarceration would be "merely punitive" and would not cause her to obey the court.
Both reporters said in the documents that if Hogan insists on incarceration, they will propose being detained under restrictive conditions at home. They said the cost of electronic bracelets and other monitoring equipment would be borne by private entities, not taxpayers, and that they would give up much of their contact with the outside world
If jailed, however, Cooper suggested he should be sent to a federal prison camp in Cumberland, in close proximity to Washington, where he lives with his wife, Mandy Grunwald, and their 6-year-old son. Miller proposed a federal women's prison camp in Danbury, Conn., which her lawyers described as "safe" and "near to Ms. Miller's 76-year-old husband," retired book publisher Jason Epstein, in New York City.
Most people found in contempt by a federal court in the District serve their time in the D.C. jail.
Hogan held Miller, Cooper and Time in contempt of court in October for refusing to identify their sources to special prosecutor Patrick J. Fitzgerald, who is investigating whether senior administration officials knowingly identified covert CIA operative Valerie Plame to the media.
Plame's name first appeared in a July 2003 syndicated column by Robert D. Novak, shortly after Plame's husband, former ambassador Joseph C. Wilson IV, published an opinion piece in the Times that accused the Bush administration of twisting intelligence to justify going to war with Iraq.
Fitzgerald wants to talk to Miller and Cooper about conversations they had with specific government officials. A spokesman for Fitzgerald declined to comment yesterday on the filings or the reporters' detention proposals. Fitzgerald has until Tuesday to reply to Hogan.
Over Cooper's objections, Time yesterday turned over notes and e-mails of Cooper's that were stored in a computer. The magazine, which faces a $1,000-a-day fine that had reached $270,000, said it hoped that by complying it would keep Cooper out of jail.
Time editor-in-chief Norman Pearlstine said Thursday that after the Supreme Court refused on Monday to hear the reporters' appeals of the case, he believed that the magazine had to obey Hogan's order.
In the court papers, the two reporters laid out their final arguments as they prepare for a hearing Wednesday at which Hogan could order them incarcerated.
"Mr. Cooper submits that his testimony would be duplicative and unnecessary, and he respectfully requests the court to inquire of the Special Counsel whether the grand jury still needs Mr. Cooper's testimony," Cooper's attorneys wrote.
In arguing for home confinement, Miller's attorneys said in the filings that Miller would suffer from giving up such tools as her cell phone and Internet access, because "impairing her unrestricted ability to do her job as an investigative journalist . . . would present the strictest form of coercion to her."
They said Miller is not in ill health but contended that home detention is more "suitable" for a 54-year-old woman.