News and events revolving around the ousting of CIA agent Valerie Plame.

Wednesday, July 06, 2005

New York Times Reporter Is Jailed for Keeping Source Secret

(via New York Times)

WASHINGTON, July 6 - A federal judge today ordered Judith Miller of The New York Times to be jailed immediately after she again refused to cooperate with a grand jury investigating the disclosure of the identity of a covert C.I.A. operative.

Another reporter who had been facing jail time on the same matter, Matthew Cooper of Time magazine, agreed today to testify to a grand jury about his confidential source on the same matter, thus avoiding jail. Mr. Cooper said he had decided to do so only because his source specifically released him from promises of confidentiality just before today's hearing.

The judge, Thomas F. Hogan of Federal District Court in Washington, rejected a request by Ms. Miller and her lawyers that she be allowed to serve her detention at home or in Connecticut or elsewhere, and ordered that she be put in custody and taken to a jail in the District of Columbia area until October, or until she changed her mind about testifying.

Ms. Miller herself told the court that she would not reveal her source no matter how long they jailed her.

"If journalists cannot be trusted to guarantee confidentiality, then journalists cannot function and there cannot be a free press," she read from a statement as she stood before Judge Hogan. "The right of civil disobedience is based on personal conscience, it is fundamental to our system and it is honored throughout our history," she said before court officers led her away, looking shaken.

The executive editor of The Times, Bill Keller, said outside the courthouse that Ms. Miller's decision to go to jail rather than disclose her source was a "brave and principled choice."

"Judy Miller made a commitment to her source and she's standing by it," he said. "This is a chilling conclusion to an utterly confounding case."

Arthur Sulzberger Jr., the publisher of The New York Times, said in a statement that "there are times when the greater good of our democracy demands an act of conscience."

"Judy has chosen such an act in honoring her promise of confidentiality to her sources," he said. "She believes, as do we, that the free flow of information is critical to an informed citizenry."

Judge Hogan made his decision after an hourlong hearing here this afternoon in which a special prosecutor and lawyers for both journalists presented their respective cases for why the two should or should not be jailed.

Mr. Cooper told the judge that he had been prepared to go to jail until shortly before the hearing.

"Last night I hugged my son good-bye and told him it might be a long time before I see him again," Mr. Cooper said. But just before today's hearing, he had received "in somewhat dramatic fashion" a direct personal communication from his source freeing him from his commitment to keep the source's identity secret.

"It's with a bit of surprise and no small amount of relief that I will comply with the subpoena," he told the judge.

Ms. Miller will be the first Times reporter to serve time behind bars for refusing to disclose sources since M.A. Farber spent 40 days in a New Jersey jail in 1978. In the Farber case, The Times itself was also fined $286,000. Four years later, Gov. Brendan T. Byrne pardoned Mr. Farber, who is now retired, as well as the paper.

Last October, Ms. Miller and Mr. Cooper were sentenced to 18 months in jail for civil contempt of court, but those sentences were stayed pending appeal. Last week, the Supreme Court refused to take up the case.

Judge Hogan said last week that the two reporters now faced serving only 4 of the original 18 months of their sentence, because that is all the time left in the term of the current grand jury investigating the leak case. Civil contempt is meant to be coercive rather than punitive.

A lawyer for Ms. Miller, Floyd Abrams, emphasized after the hearing that "Judy Miller has not been accused of a crime or convicted of a crime," adding that "she has been held in civil contempt of court."

Mr. Abrams also said that Judge Hogan had said, "She has the key to her own cell."

The special prosecutor, Patrick A. Fitzgerald, has suggested that the reporters may also face criminal prosecution, which could entail additional penalties.

The case highlights a collision of the press's right to protect its sources, the government's ability to investigate a crime and even the Bush administration's justification for going to war in Iraq.

It began two years ago, when the identity of the C.I.A. operative, Valerie Plame, was first disclosed by the syndicated columnist Robert Novak, presumably after the information was provided by someone in government. Three days later, Mr. Cooper, in an article that also carried the bylines of two other reporters, made a similar disclosure on Time magazine's Web site.

Ms. Miller, on the other hand, did not publish any such disclosures in The Times or elsewhere.

In his column, Mr. Novak, who identified Ms. Plame as the wife of a former diplomat who was critical of American policy on Iraq, cited as his sources two senior Bush administration officials whom he did not identify.

Mr. Fitzgerald is investigating whether by telling reporters about Ms. Plame people in the Bush administration broke a law meant to protect the identities of covert intelligence operatives. As part of that inquiry, several senior administration officials have testified before the grand jury.

Ms. Plame's husband, Joseph C. Wilson IV, a former United States ambassador, has maintained that his wife's cover was blown in revenge for an Op-Ed article that he had written for The New York Times questioning Bush administration assertions about weapons of mass destruction that served as sizable justification for going to war with Iraq.

Mr. Novak, who has not been held in contempt or publicly threatened with jail time, has not commented on his involvement in the investigation. Legal experts following the case have said they presume he has cooperated with the special prosecutor.

But Mr. Novak has come under increasing criticism from other journalists and columnists for not disclosing what he knows and what cooperation, if any, he has given to Mr. Fitzgerald. Mr. Novak said recently that he "will reveal all" after the matter is resolved, adding that it is wrong for the government to jail journalists.

The judge's decision to jail Mr. Cooper comes despite Time magazine's decision last week to provide the special prosecutor with Mr. Cooper's notes and other documents after the Supreme Court refused to hear the case. In a filing on Tuesday, Mr. Fitzgerald said that he had reviewed the documents and determined that Mr. Cooper's testimony "remains necessary."

"Journalists are not entitled to promise complete confidentiality - no one in America is," Mr. Fitzgerald told the judge on Tuesday.

Mr. Fitzgerald also said in the court papers that the source for both Mr. Cooper and Ms. Miller had waived confidentiality, giving the reporters permission to reveal where they got their information. The prosecutor did not identify that person, nor say whether the source for each reporter was the same person.

Mr. Cooper told the judge today while he had been told his source had signed a general waiver of confidentiality, he would only act with a specific waiver from his source, which he said he got today.

Mr. Fitzgerald, who until then had been restrained in his public filings, was also harshly critical of the position taken by Ms. Miller and of statements supporting her by The Times.

"The court should advise Miller that if she persists in defying the court's order that she will be committing a crime," Mr. Fitzgerald wrote. "Miller and The New York Times appear to have confused Miller's ability to commit contempt with a legal right to do so."

He added: "Much of what appears to motivate Miller to commit contempt is the misguided reinforcement from others (specifically including her publisher) that placing herself above the law can be condoned." Mr. Sulzberger, the publisher of The Times, has repeatedly said the newspaper supports Ms. Miller.

Today, after Ms. Miller was taken into custody, Mr. Keller said that prosecutors had failed to disclose what crime, if any, they were investigating.

"It's confounding because of the mystery about exactly what crime has been committed and what exactly the special prosecutor hopes to accomplish by the draconian act of punishing an honorable journalist," he said. "It's chilling because it's likely to serve future cover-ups of information that happens in the recesses of government and other powerful institutions.

"I think that anybody who believes that the government and other powerful institutions should be closely and aggressively watched should feel a chill up their spine today," he said.

Adam Liptak reported from Washington for this article and Maria Newman reported from New York.


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