Times reporter jailed in leak case

WASHINGTON -- A veteran reporter for The New York Times was sent to jail yesterday for defying a court order and refusing to reveal the identity of a source, in a dramatic turn in a case with widespread implications for the way journalists collect information.

The case was filled with political intrigue: It involved the secret identity of a CIA agent, purported leaks by top White House officials, and part of the rationale for President Bush's decision to go to war in Iraq.

Minutes before federal marshals escorted Times reporter Judith Miller from the courtroom, a Time magazine reporter, Matthew Cooper -- Miller's codefendant -- stunned many in the courtroom when he told US District Judge Thomas F. Hogan that he would testify before a federal grand jury and disclose the identity of his source.

Though Time had turned over his notes, Cooper said he had decided to obey the court after a last-minute communication from the source yesterday morning giving him permission to testify.

Hogan then formally dismissed the contempt charge against Cooper and asked Miller's defense lawyers, Floyd Abrams and Robert Bennett, whether their client would follow suit. They said no, and Miller then read a prepared statement in the hushed, packed courtroom.

''I do not make confidentiality pledges lightly, but when I do, I must honor them," Miller said. ''If I do not, how can I expect people to accept my assurances?"

Hogan found Miller in contempt of court and ordered her to remain behind bars unless she changes her mind -- or until the grand jury finishes its work in four months. ''The court has to take some action to attempt to get [Miller] to comply," Hogan said.

Speaking to dozens of reporters outside the courthouse, Abrams and Times executive editor Bill Keller praised Miller for honoring her commitment. Keller called Miller's decision to protect her source ''a brave and principled choice."

Keller said Hogan's decision to jail Miller was ''a chilling conclusion to an utterly confounding case," since Miller had never written a story involving the confidential source, and since the probe had been launched to determine which government official had leaked the name of a CIA official to reporters -- a federal crime.

The special prosecutor, Patrick Fitzgerald, argued during the hearing that Miller did not have the authority to promise a source unconditional confidentiality. ''We'd all like to make that promise, but we can't -- and frankly for good reason," he said. ''We can't have 54,000 journalists be given a power that no one in the [White House] has."

The case touched on First Amendment issues and the fundamental nature of political journalism, involving two of the country's most influential news organizations. Fitzgerald is authorized to find out whether someone in the White House leaked the name of an undercover CIA agent to reporters in retaliation for her husband's opinion article criticizing President Bush and the Iraq war.

The agent, Valerie Plame, is the wife of Joseph C. Wilson IV, a former US ambassador who went to Niger for the Bush administration to investigate whether that nation had sold uranium to Iraq for a nuclear device.

After Wilson discounted the White House's assertion that Niger had sold uranium to Iraq, syndicated columnist Robert Novak wrote a column identifying Plame. This prompted Wilson to accuse the Bush administration of leaking Plame's name in retaliation.

Miller did not write about the Plame matter, but Cooper did for Time's website, partly echoing what Novak had written.

Questioned in 2004, both Miller and Cooper refused to tell Fitzgerald their sources, and defied court orders to do so. Charged with contempt, the reporters appealed to the Supreme Court, which declined to hear the case. Novak was not ordered to testify, and he has refused to talk about his role in the case.

Norman Pearlstine, editor in chief at Time Inc., then decided to comply with orders to turn over Cooper's notes that identified the source. Pearlstine said he had concluded that Time is not exempt from the law.

But The New York Times stood by Miller and continued to fight in court. Forcing her to reveal a source, they argued, will have a ''chilling effect" on how reporters do their jobs.

The case has been closely watched by journalists and First Amendment interest groups.

Tom Rosenstiel, director of the Project for Excellence in Journalism, said the risk of the case is ''reporters no longer have the ability to offer confidentiality to a source because that could be countermanded by executives after the fact and by courts after the fact."

Talking to reporters after the hearing, Cooper sounded pained. ''This is a sad day for the journalists of this country," he said.

Until yesterday morning, Cooper said, he had been prepared to go to jail. He said he told his 6-year-old son that he might be gone for a while and kissed him goodbye before sending him to camp. Then, Cooper said, his source called him.

Cooper said the source released him from his pledge of confidentiality. While the source reportedly had waived his confidentiality to prosecutors, Cooper wondered whether the source had signed the waiver under duress and the threat of being fired. ''It's with a bit of surprise and no small bit of relief that I agreed to testify today," Cooper told the court.

Cooper wouldn't say why the source had had a change of mind. Abrams said he didn't know whether Miller had spoken to her source.

As the hearing began yesterday afternoon, Miller and Cooper embraced, and several reporters covering the case also hugged Miller.

After Cooper agreed to testify, and Miller refused, Bennett urged the judge to allow Miller to serve any contempt sentence in the federal prison in Danbury, Conn., or to be confined in her home. Bennett said the latter course would allow Miller to continue her reporting work and would allow her access to medical treatment for an undisclosed ailment.

Bennett told Hogan he worries that Miller will be an innocent victim while the person who committed a crime -- the person who leaked Plame's name -- might go free. ''I have the nagging feeling that Judy Miller may be the only person going to jail in this case -- and that, your honor, would be a tragedy," Bennett said.

But the judge displayed little sympathy: ''I don't think anything else would convince her that she is wrong." Hogan added that Miller's confinement should send a message to other reporters who rely on confidential sources.

Robert Zelnick, chairman of Boston University's journalism department, said that in his analysis the case boils down to political agendas. ''This had to do with Wilson trying to score some political points against the Bush White House, and the Bush administration overreacting by leaking the Valerie Plame name, and the liberal press then overreacting to that," Zelnick said.

Lucy Dalglish, who heads The Reporters Committee for Freedom of the Press, and who was in the courtroom, said the ruling will not change the way reporters gather news. Still, Dalglish said, ''The point is we need to provide truthful information . . . to the public. Sometimes the only way to do that is through confidential sources."

Some organizations hope the case will prompt Congress to enact a federal ''shield" law protecting reporters and their sources. A proposal by Representative Martin T. Meehan of Lowell, for example, would prevent the disclosure of sources unless ''clear and convincing evidence that such testimony is essential to the investigation, prosecution or defense of a criminal case," according to a statement by Meehan's office.