Matthew Cooper of Time magazine and Judith Miller of The New York Times should be jailed for refusing to cooperate with a grand jury investigating the disclosure of the identity of a covert C.I.A. operative, the special prosecutor in the case said in court papers filed yesterday. Last week, Time magazine provided Mr. Cooper's notes and other documents to the special prosecutor, Patrick J. Fitzgerald, after the United States Supreme Court refused to hear appeals filed by the magazine and the two reporters. In yesterday's filing, Mr. Fitzgerald said he had reviewed the documents and determined that Mr. Cooper's testimony "remains necessary." The reporters filed papers on Friday asking that they be sentenced to home confinement if incarceration is required. In case the presiding judge denied that request, 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 those requests yesterday, saying the local jail in the District of Columbia "or some other nearby federal facility" would be more appropriate. Judge Thomas F. Hogan of Federal District Court in Washington will hold a hearing today to consider the question. Mr. Fitzgerald, who had been restrained in his public filings, was harshly critical of the position taken by Ms. Miller and of statements supporting her by The Times. His response to Mr. Cooper was barely 4 pages; to Ms. Miller, 21 pages. In October, Judge Hogan held the reporters in civil contempt, sentencing them to up to 18 months in jail. He suspended the sentences while the reporters appealed, and he said last week that the maximum time they faced was 120 days, as the term of the grand jury will expire in October. Civil contempt is meant to be coercive rather than punitive. In yesterday's filing, though, Mr. Fitzgerald suggested that criminal prosecution was also a possibility. "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. Mr. Fitzgerald quoted at length from news accounts about Time's decision to demonstrate that journalists and others are not of one mind about the obligation of news organizations and reporters to obey final court orders concerning their confidential sources. He also quoted from opinion columns, essays and a Los Angeles Times editorial suggesting that reporters should not take absolutist positions. Catherine J. Mathis, a spokeswoman for The Times, said, "We intend to respond to the special counsel's views in court tomorrow." Dawn Bridges, a spokeswoman for Time Inc., a division of Time Warner, declined to comment on behalf of the magazine and Mr. Cooper. As the case reached a critical phase, new details emerged about underlying events from two years ago. The syndicated columnist Robert Novak disclosed the identity of the operative, referring to her by her maiden name, Valerie Plame, in a July 2003 article. A few days earlier, Newsweek reported this week, Mr. Cooper had talked by telephone with Karl Rove, the senior White House political adviser. Mr. Cooper and two other reporters published an article three days after Mr. Novak discussing Ms. Plame's identity. The article cited as its sources "some government officials" and did not mention Mr. Rove. Ms. Miller has not written on the subject. Robert D. Luskin, Mr. Rove's lawyer, confirmed that the conversation with Mr. Cooper took place. Mr. Luskin declined to discuss the subject of the conversation, but said Mr. Rove did not disclose Ms. Plame's identity. White House officials have long said Mr. Rove was not a source for Mr. Novak's column. In his filing yesterday, Mr. Fitzgerald urged Judge Hogan to reject the reporters' requests for home confinement. "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." David Johnston contributed reporting from Washington for this article.
Prosecutor in Leak Case Calls for Reporters' Jailing
by Adam Liptak
The New York Times
July 6, 2005
https://judithmiller.com/538/prosecutor-in-leak-case-calls-for-reporters
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