A special prosecutor pleaded with a federal judge yesterday to punish two recalcitrant reporters by sending them to jail, not put them under house arrest as they had hoped.
In memos filed with the U.S. District Court in Washington, the prosecutor, Patrick J. Fitzgerald, sought immediate incarceration for Matthew Cooper of Time magazine and Judith Miller of The New York Times, despite a decision last week by Cooper's superiors at Time Inc. to provide Fitzgerald with what he has been seeking since last year - the identity of White House sources who made public the name of a CIA agent.
Both reporters, citing promises of confidentiality, have refused to identify their sources, and Cooper said last week that he was disappointed with his bosses' decision to do so.
The case of Miller and Cooper could represent the most contentious battle between the press and the government since the Pentagon Papers, a secret study on the government's decisions about the Vietnam War that was leaked in 1971 to the Times and The Washington Post. That fight ended up before the Supreme Court, which decided 6-3 that the government could not block publication.
The current case arose from a July 6, 2003, Op-Ed piece written for the Times by Joseph C. Wilson IV, a former diplomat, in which he criticized President Bush for relying on discredited information when he said in a State of the Union speech that Saddam Hussein had purchased uranium from Niger as part of a nuclear weapons program. A week later, columnist Robert Novak identified Wilson's wife, Valerie Plame, as a CIA agent, and said the tip had come from two White House sources, in what might have been retaliation for Wilson's comments.
The reporters' fate is to be determined today in a hearing before Judge Thomas F. Hogan, who told the reporters last week that he was inclined to send them to jail for not complying with his order that they reveal who gave them Plame's name.
In his memo, Fitzgerald wrote that having reviewed documents provided in the past few days by Time Inc., "Cooper's testimony remains necessary" to the investigation of the leak. Fitzgerald rejected Cooper's contention that because his superiors complied with the judge's order, Cooper should be spared a stint in jail of up to 120 days.
The prosecutor disagreed with Miller's argument that since she has no intention of identifying her source, confinement in jail would be "ineffective and therefore inappropriate."
"The court should advise Miller that if she persists in defying the court's order that she will be committing a crime," Fitzgerald wrote.
Novak has not, apparently, been the subject of prosecution for his column. Cooper wrote about the leak for Time.com; Miller did not write about it, but did research on the subject.
Charles Warner, the Goldenson professor emeritus at the University of Missouri School of Journalism, said the case was "a big deal" because it was symptomatic of the Bush White House's attitude toward the media.
"The Bush administration, and therefore the courts and the Justice Department, are trying to castigate the media for using unnamed sources," Warner said. "But it's very hypocritical of this administration to do that because they have used background briefings to advance their agenda - in other words, requiring reporters to use unnamed sources at the White House, and counting on it."
"They haven't prosecuted Novak because he's a conservative," said Warner, who operates the Web log MediaCurmudgeon.com.
Warner said Miller, in particular, is getting a raw deal, not least because she never wrote about the Plame case. "She's tainted because she's with The New York Times, which this administration hates," Warner said. "They can't wait to get to her."
In his pleadings, Fitzgerald spoke repeatedly of fairness. "Journalists are not entitled to promise complete confidentiality" he wrote. "No one in America is."
He took exception to Miller's argument that she had a "principled motive" for her decision not to testify before a grand jury investigating the leak and her avowal that it was "in the highest traditions of the press."
"A number of journalists, First Amendment scholars and opinion leaders flatly disagree with the position Miller is taking at the behest of The New York Times," Fitzgerald wrote. He quoted Norman Pearlstine, editor in chief of Time Inc., to the effect that journalists are "not above the law," and editorials with similar views in the Chicago Tribune and Los Angeles Times.
He referred to a Columbia Journalism Review article that called the outing of Plame "the kind of sleazy Beltway maneuver that represents the worst use of confidential information."
"It is clear," the article said, "that many reporters and press advocates are upset that the Times has allowed the Plame case to develop into a potential seminal test of the reporter's privilege."Copyright © 2015, The Baltimore Sun