Reporters threatened with jail? Are unidentified sources critical to reporting the news or an excuse not to dig further?
June 30, 2005
Judge Warns Reporters They Face Jail in a Week
By ADAM LIPTAK
WASHINGTON, June 29 - With mounting frustration and a hint of anger, a federal judge said at a hearing Wednesday that he would send two reporters to jail in one week if they did not agree to testify before a grand jury about their confidential sources in the meantime.
Lawyers for the reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, said their clients would accept jail time rather than testify.
The judge, Thomas F. Hogan of Federal District Court here, added that he would also impose very large fines against Time Inc., in an effort to force the company to obey a court order directing it to turn over documents in the investigation.
A lawyer for Time Inc., Theodore J. Boutrous Jr., told Judge Hogan the company was still considering whether to comply with the order.
"We are grappling with those issues," Mr. Boutrous said. "Time is part of a public company and has a deliberative process to work through these issues."
The grand jury is looking into the possibly unlawful disclosure of the identity of a covert C.I.A. operative, Valerie Plame.
Judge Hogan expressed surprise that a public company like Time Warner, Time Inc.'s parent, would even consider violating a final court order. The Supreme Court turned down appeals in the case on Monday.
"The only way we operate in this society, in a democratic society, is by the rule of law and to have people obey court orders," Judge Hogan said.
Patrick J. Fitzgerald, the special prosecutor in the case, said Time has no choice but to comply with the order.
"I don't understand what Time can deliberate about," he said. "They don't have a right to break the law. We shouldn't allow people to think that court orders are sort of optional."
Dawn Bridges, a spokeswoman for Time Inc., declined to comment about whether the company would comply with the order.
Mr. Fitzgerald said a decision by Time Inc. to comply "could short-circuit a lot of issues in the case."
If Time supplies the documents - which include Mr. Cooper's notes - that could serve as a substitute for jailing Mr. Cooper, Mr. Fitzgerald suggested.
In an interview, Mr. Cooper expressed gratitude to his employer for fighting the case and said he hoped it would keep his secrets.
"Time Inc. has been a steadfast champion of the First Amendment, and they fought all the way to the Supreme Court," he said. "Corporations, though, are not individuals, and Time has to make a decision about what it's going to do. I would prefer that they not disclose the identity of my sources, but that's up to them."
Prof. John C. Coffee, an expert in corporate law at Columbia Law School, said Time Warner might have no choice but to comply.
"The board of directors and managers of a company are given great discretion to operate a company within boundaries set by law, including a lawful court order," he said. "I don't think they can continue to disobey a court order upheld by the United States Supreme Court."
A lawyer for Ms. Miller, Robert S. Bennett, said that a decision by Time to disclose documents could conceivably help his client as well.
"Maybe Time magazine is thinking of doing some things that might moot out the case," Mr. Bennett said.
Unlike Time, The New York Times has not been held in contempt because The Times does not have any relevant documents.
In October, Judge Hogan ordered the reporters jailed for up to 18 months or until the grand jury completes its work. Judge Hogan disclosed Wednesday that the grand jury's term will expire this October.
"We're talking 120 days, not 18 months," the judge said.
On two occasions at the hearing, Judge Hogan referred to Lewis Carroll, the creator of Alice in Wonderland.
"'The time has come, the Walrus said," Judge Hogan declared, suggesting that the case against the reporters and Time Inc. had reached its conclusion.
Later, he said he could not understand Time's positions.
" 'It's curiouser and curiouser' is what Alice said, when she got down the rabbit hole," Judge Hogan said.
Mr. Bennett, too, said there was something curious about the case.
"It's a big step," he said, "to put two people in jail who have committed no crime and who have been caught in what Your Honor has publicly referred to as 'a perfect storm.' " Judge Hogan made that comment in a speech in Montana in April, according to news reports.
The case has its roots in an opinion article published in The Times on July 6, 2003. In it, Joseph C. Wilson IV, a former diplomat, criticized a statement made by President Bush in that year's State of the Union address about Iraq's efforts to buy nuclear weapons material in Africa. Mr. Wilson based his criticism on a trip he had taken to Africa for the Central Intelligence Agency the previous year.
Eight days after Mr. Wilson's article was published, Robert D. Novak, the syndicated columnist, reported that "two senior administration officials" had told him that Mr. Wilson's wife, Ms. Plame, was "an agency operative on weapons of mass destruction."
Mr. Wilson has said the disclosure was payback for his criticism. Others have said that the disclosure put his criticism in context by suggesting that Mr. Wilson's trip was not a serious one but rather a nepotistic boondoggle.
Mr. Cooper's article about Ms. Plame appeared after the Novak column. Ms. Miller conducted interviews on the matter but did not publish an article.
Since Mr. Novak appears not to be facing jail time, he presumably supplied information to Mr. Fitzgerald. It is not clear why that did not conclude the investigation. Mr. Fitzgerald and Mr. Novak have consistently declined to discuss the matter.
In court on Wednesday, Mr. Fitzgerald said that Time has a moral and legal obligation to assist in the investigation.
"This case is not about a whistleblower," he said. "This case is about a potential retaliation against a whistle-blower."
Judge Hogan directed the reporters and Time to file papers by Friday about where the reporters should be jailed and the size of the fine. He said the fine, which had been $1,000 a day but was suspended pending appeals, may be made retroactive and is likely to increase to "a very large sum."