WASHINGTON - In a high-stakes battle over press freedom, two reporters face jail, possibly as early as Wednesday, for refusing to divulge their sources to a prosecutor investigating the Bush administration's leak of a CIA officer's identity.
"Journalists are not entitled to promise complete confidentiality - no one in America is," Special Counsel Patrick Fitzgerald told a judge.
In court papers, Fitzgerald said the source of Matthew Cooper of Time magazine and Judith Miller of The New York Times has waived confidentiality, giving the reporters permission to reveal where they got their information.
The prosecutor did not identify the reporters' source, nor did he specify whether the source of each reporter was the same person.
U.S. District Judge Thomas F. Hogan held the reporters in civil contempt of court in October, rejecting their argument that the First Amendment shielded them from revealing their sources. Hogan was conducting a hearing on the matter Wednesday, at which time he could order the reporters jailed.
The reporters might decide to talk if they are sent to prison, the prosecutor said.
Cooper and Miller seek home confinement, but that would make it easier for them to continue to defy a court order to testify, the prosecutor said.
Cooper has said it is duplicative and unnecessary for him to testify because his employer, Time Inc., on Friday provided Fitzgerald records, notes and e-mail traffic from inside the company.
"By Cooper's own account, his source's confidentiality has been mooted by the production of relevant documents by Time Inc.," the prosecutor said, insisting that Cooper still must testify.
Without elaboration, Fitzgerald said Miller's source "has been identified and has waived confidentiality."
Miller's attorney, Robert Bennett, said he hopes that Time magazine's disclosures "will eliminate the need for Judy's testimony and this crisis can be ended."
In arguing that Miller be jailed, Fitzgerald said other reporters in the case had complied with court orders and that Time Inc.'s editor-in-chief, Norman Pearlstine, had said last Thursday, "I feel we are not above the law." Pearlstine made the comment in explaining why he had turned over documents to the prosecutor. Time is part of the media company Time Warner Inc.
Columnist Robert Novak revealed in July 2003 that the wife of former U.S. ambassador Joe Wilson was a CIA officer, days after Wilson publicly impugned President Bush's justification for invading Iraq. Revealing the name is a possible federal crime.
Cooper spoke to White House deputy chief of staff Karl Rove after Wilson's public criticism of Bush and before Novak's column ran, says Rove's lawyer, Robert Luskin, who denies that Rove leaked Valerie Plame's identity to anyone. Cooper's story mentioning Plame's name appeared after Novak's column. Miller did some reporting, but never wrote a story.
Among the witnesses Fitzgerald's investigators have questioned are President Bush; Vice President Dick Cheney; Rove; Cheney's chief of staff, Lewis Libby; and former White House counsel Alberto Gonzales, who is now the attorney general.
Novak has said he "will reveal all" after the matter is resolved, adding that it is wrong for the government to jail journalists. In his column revealing Plame's identity, he cited two unidentified senior Bush administration officials as his sources.
Novak, who has not been held in contempt, has not commented on his involvement in the investigation.
Miller says her moral principles in not testifying are widely shared in journalism. The prosecutor urged she be advised that continuing to defy the court's order is a crime and that she can be prosecuted for criminal contempt.
Miller's views may change over time, Fitzgerald argued, especially if her refusal to testify is seen as undercutting, not enhancing, the credibility of the press.
Employees in the news industry and First Amendment supporters are staging protests and vigils in support of Miller and Cooper at federal courthouses and U.S. government facilities in cities around the country.
Thirty-one states and the District of Columbia have shield laws protecting reporters from having to identify their confidential sources. Legislation to establish such protection under federal law has been introduced in Congress.
© 2005 AP