N.Y. Times reporter is sent to jail for withholding source

WASHINGTON - Declaring no one to be above the law, a federal judge sent New York Times reporter Judith Miller to jail yesterday for refusing to divulge a confidential source to a grand jury investigating the disclosure of a CIA agent's identity.

The judge also lifted a contempt citation against Matthew Cooper of Time magazine, after Cooper made the dramatic courtroom announcement that his confidential source had contacted him earlier yesterday and given him permission to cooperate with the grand jury.

But Miller received no such call from her own confidential source and was taken into custody shortly after 3 p.m. at the U.S. District Courthouse in Washington. The Pulitzer Prize winner hugged her lawyers before being escorted from the courtroom, showing little emotion. She was taken to the Alexandria Detention Center in Virginia and ordered held until she agrees to testify or until the grand jury's term expires in four months.

"It is not taken lightly, these steps," said Chief District Judge Thomas F. Hogan. "I've read many letters as to her talents and achievements, but the court has to recognize we have to follow the law."

It was the first time in more than 25 years that a New York Times reporter has been jailed for refusing to name a confidential source. In a statement to the court, Miller said she did not consider herself above the law but felt compelled to stand up for freedom of the press.

"I do not take our freedoms for granted. I never have. I never will," Miller, 57, told the court. "But I also know the freest and fairest societies are not only those with an independent judiciary, but those with an independent press, publishing information the government does not want to reveal.

"If journalists cannot be trusted to guarantee confidentiality, then journalists cannot function and there cannot be a free press."

'Stunning' developments

Cooper, 42, said he was also prepared to go to jail to protect that principle. He said he hugged his 6-year-old son goodbye yesterday morning before sending him off to camp and told him he might not see him for a long time. But then before court convened, Cooper received a surprise call.

"This morning, in what can only be described as a stunning set of developments, that source agreed to give me a specific, personal and unambiguous waiver to speak before the grand jury," Cooper told reporters outside court. When one offered him congratulations, he said, "There's no congratulations. This is a very sad day."

Cooper told the judge he would cooperate with special prosecutor Patrick Fitzgerald and testify to the grand jury. Last week, Time magazine turned over Cooper's notes and e-mails, which contained the name of his confidential source, but Fitzgerald said Cooper's testimony was still needed.

Fitzgerald is investigating who leaked the name of CIA operative Valerie Plame to conservative columnist Robert Novak. Novak published Plame's name in July 2003, attributing the information to two White House sources. Some saw the leak as political retribution aimed at Plame's husband, former diplomat Joseph C. Wilson IV, who had written a New York Times op-ed piece critical of President Bush.

But the disclosure of a CIA agent's name can be a federal crime, so an investigation was launched. Cooper and Miller reported on the situation, though Miller never wrote an article about it. Novak, meanwhile, has refused to say whether he cooperated with the grand jury and has not, apparently, been the subject of prosecution.

"This is a chilling conclusion to an utterly confounding case," New York Times Executive Editor Bill Keller said outside court yesterday. "I think anyone who believes that the government and other powerful institutions should be closely and aggressively watched should feel a chill up their spine today."

Times attorney Floyd Abrams said, "Judy is an admirable woman adhering to the highest traditions of her profession and the highest traditions of humanity. She should be honored for that, and I think in history she will be."

Both Cooper and Miller were honored by their fellow reporters yesterday. In newsrooms across America, journalists stood in silence for two minutes at noon to protest the special prosecutor's pursuit of Miller and Cooper.

But Fitzgerald said in court that journalists do not have the right, under federal law, to make absolute promises of confidentiality to sources. No one, he said, has that power. He noted that even former President Richard M. Nixon had to turn over tapes to a grand jury.

"Ms. Miller has done everything in her power to keep that promise" to her source, Fitzgerald said. "At a certain point, we have to yield to law because if we don't, we're lost."

The editor in chief of Time Inc., Norman Pearlstine, came to a similar conclusion last week in deciding to surrender Cooper's notes, over the reporter's objections. In a statement last week, Pearlstine said, "The same Constitution that protects the freedom of the press requires obedience to final decisions of the courts."

'She has the keys'

Judge Hogan said he was jailing Miller in the hope that it would make her reconsider her decision not to testify. In that way, the detention is not punitive but coercive. "She has the keys to release within herself," Hogan said.

But Miller's attorneys said they were certain she would never betray her source. Lawyer Robert Bennett read from letters to the court from military officers whom Miller covered in Iraq. They praised her commitment to journalistic standards and said they were confident she would not withhold information that was vital to national security.

"Judith Miller was embedded with the most sensitive units in Iraq. She was trusted by our government to maintain confidentiality and secrets," Bennett said. "And yet I'm perplexed because another part of our government is saying she [should go to jail] for maintaining confidentiality."

Bennett asked that Miller be given home confinement in lieu of jail time, or that she be sent to the federal prison in Danbury, Conn., for safety and health reasons. But the judge rejected those requests.

New York Times publisher Arthur Sulzberger Jr. said in a statement that he hoped Miller's imprisonment would cause Congress to move forward with legislation that would create a federal shield law for reporters. Bills to create the law, which would allow reporters to protect their sources, have been introduced in the House and Senate.

"There are times when the greater good of our democracy demands an act of conscience," Sulzberger said. "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."

Sun staff writer Nick Madigan contributed to this article.

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