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Jail looms for two journalists

Supreme Court turns down the appeal of reporters who have refused to name their sources in leak probe

BY TOM BRUNE | WASHINGTON BUREAU

June 28, 2005

WASHINGTON - After the Supreme Court rejected their appeals yesterday, two journalists who refused to reveal their confidential sources in a federal leak probe could face an order to go to jail as soon as this week.

Reporters Matthew Cooper of Time magazine and Judith Miller of The New York Times will appear in U.S. District Court in Washington tentatively tomorrow afternoon to face the judge who held them in contempt last October for refusing to testify about the Bush administration's leak of a covert CIA operative's name.

At the hearing, Special Counsel Patrick Fitzgerald is expected to seek an order forcing their testimony, or jail, and attorneys for Cooper and Miller will launch a last-ditch legal pitch that one lawyer knowledgeable about the case likened to a "Hail Mary" pass.

Time withheld Cooper's final position pending the judge's response, but The New York Times said it would back Miller's decision to honor her commitment to protect her sources.

In the probe, Fitzgerald is trying to find out who in the Bush administration leaked the name of covert CIA officer Valerie Plame to columnist Robert Novak in July 2003.

Novak is mum on his sources and on whether he has talked to investigators. Fitzgerald sought to question several reporters, but Cooper and Miller refused, citing the need to protect their confidential sources.

After U.S. District Judge Thomas Hogan held them in civil contempt, Cooper and Miller appealed.

In declining to hear their appeals, the Supreme Court yesterday let stand lower court rulings that reporters do not have a First Amendment right to refuse to comply with a federal grand jury subpoena in a criminal probe.

Fitzgerald said the probe is done except for the reporters' testimony. He said with "all appeals exhausted, we look forward to resuming our progress in this investigation and bringing it to a prompt conclusion."

But Time said it would ask Hogan for a prompt new hearing to "reassess" reporters' privilege in light of developments in the probe.

Time said there was "reason to believe" Fitzgerald had determined the leak did not violate federal law against identifying a covert agent and was now probing whether any witnesses made false statements. Obstruction of justice or perjury charges would not rise to the level of requiring reporters to reveal their sources, Time said.

Time, the Times and journalism groups called the court's sidestepping of the cases a disappointment. New York Times publisher Arthur Sulzberger Jr. called it "shocking" that Miller faces jail for not divulging sources she used for a story that was not published.