The New York Times
July 6, 2005
By ADAM LIPTAK
and MARIA NEWMAN
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.
"There are times when the greater good of our democracy demands an act of
conscience," Arthur Sulzberger Jr., chairman of The New York Times Company
and publisher of The New York Times, said in a statement. "Judy has chosen
such an act in honoring her promise of confidentiality to her sources. She
believes, as do we, that the free flow of information is critical to an
informed citizenry."
Bill Keller, the newspaper's executive editor, said outside the court house
that Ms. Miller's decision to go to jail rather than disclose her source was
a "brave and principled choice."
"This is a chilling conclusion to an ultimately confounding case," he said.
Ms. Miller herself told the court, according to the news agency Reuters, "If
journalists cannot be trusted to keep confidences, then journalists cannot
function and there cannot be a free press."
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, according to The Associated Press.
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, The A.P. said.
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.
But 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.
"I received express personal consent" from the source, he told the judge.
The judge and Mr. Fitzgerald accepted Mr. Cooper's offer to testify.
"That would purge you of contempt," Mr. Hogan said, according to The A.P.
Earlier, on Friday, the reporters filed papers asking that if the judge
decided to impose his sentence that they be allowed to serve their time in
home confinement. Otherwise, Ms. Miller asked to be sent to a federal prison
camp in Danbury, Conn., and Mr. Cooper to one in Cumberland, Md.
Mr. Fitzgerald opposed both those requests on Tuesday, saying the local jail
in the District of Columbia, where the grand jury is sitting, "or some other
nearby federal facility" would be more appropriate.
"Forced vacation at a comfortable home is not a compelling form of
coercion," he wrote. "Certainly one who can handle the desert in wartime,"
he added, referring to Ms. Miller's coverage of the war in Iraq, "is far
better equipped than the average person jailed in a federal facility."
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." The publisher of The
Times, Arthur Sulzberger Jr., has repeatedly said the newspaper supports Ms.
Miller.
In the 1978 case, Mr. Farber refused to provide his notes to a doctor who
was charged with killing patients by injecting them with curare. The doctor,
Dr. Mario Jascalevich, was acquitted. Mr. Farber was the only person to
serve time in the case.
Adam Liptak reported from Washington for this article and Maria Newman
reported from New York.
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