NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · July 6, 2005
Miller jailed for refusing to reveal source, Cooper to testify
July 6, 2005 · New York Times reporter Judith Miller was jailed Wednesday for refusing to identify a confidential source to a grand jury investigating a leak of a CIA operative’s identity and is expected to remain confined until she decides to testify — which she vehemently vows she will not do — or until the grand jury expires in late October.
“I do not make confidential pledges lightly but when I do, I keep them,” Miller, a Pulitzer Prize-winning journalist told Chief U.S. District Judge Thomas F. Hogan in a hearing capturing the biggest clash between the press and the government since the Vietnam-era Pentagon Papers case.
“In this case, I cannot break my word just to stay out of jail,” Miller told Hogan before he sentenced her.
Time magazine reporter Matt Cooper escaped going to jail after his source voluntarily waived confidentiality just hours before Wednesday’s court hearing that ended with Miller’s jailing. Cooper refuses to publicly name his source and will disclose the information only to the grand jury.
Hogan found Miller and Cooper in civil contempt of court last fall after they refused to reveal their sources to a grand jury investigating who leaked CIA agent Valerie Plame’s identity to columnist Robert Novak and other reporters in July 2003. Miller and Cooper’s convictions were upheld by the U.S. Court of Appeals in Washington and last week, the U.S. Supreme Court declined to review the case.
Two U.S. marshals surrounded Miller as Hogan announced the sentence. Citing overcrowding and security concerns at Washington, D.C.’s jail, Hogan said Miller will be confined in the women’s section of a jail in the Washington metropolitan area. Miller, uncuffed, led the marshals and a court bailiff out of the back door of the courtroom.
In reaching his decision, Hogan rejected arguments from Miller and her lawyers that time behind bars will not coerce her to reveal her source.
“I have spent a lot of time with Ms. Miller and she is not going to reveal her source,” Robert Bennett, one of a team of lawyers representing Miller, told Hogan. “This is not about punishment. This is about coercion and sending her to jail will not coerce her.”
Hogan said Miller “has not proven that she will not be compelled to reveal her source” after spending time in jail.
In her seven-minute statement to Hogan, Miller said she “is not above the law” but that journalists must be trusted to keep sources secret. “If journalists cannot be trusted to guarantee confidentiality, then there cannot be a free press.”
“I do not take our freedom for granted. I never have and I never will,” she said, recalling a four-month stint as an embedded reporter covering the early days of the war in Iraq in 2003. If the military can do their job in Iraq, she said, “surely I can face prison to defend a free press.”
But Special Prosecutor Patrick Fitzgerald told Hogan that not even the government can offer complete confidentiality to sources. “If someone walked in and said I could tell you where [Osama bin Laden] is, I couldn’t promise confidentiality. All we can say is we’ll do our best. You can’t hang on to a promise you just can’t keep.”
Miller’s decision not to testify freezes the entire grand jury investigation, Fitzgerald said.
“We’re having the whole thing derailed by one person,” he said.
Cooper, meanwhile, will testify before the grand jury soon. Time Inc. decided Friday against Cooper’s wishes to obey the court’s order to turn over Cooper’s notes and e-mails to the grand jury. Fitzgerald said that despite Time’s agreement to cooperate, Cooper’s testimony is still needed.
“It’s important to have live testimony,” Fitzgerald said. “We need to get this right one way or another and we need Mr. Cooper to testify.”
Cooper told the judge that, preparing to go to jail, he hugged his 6-year-old son Wednesday morning and told him he would not see him for quite some time. Several hours before the court hearing, in what Cooper described as “a stunning set of developments,” Cooper’s source contacted him and voluntarily released him from any confidentiality agreement the two had.
Miller and Cooper derided general waivers, such as the one circulated among executive branch officials that Miller’s source is alleged by prosecutors to have signed.
“Waivers demanded by a superior as a condition of employment are not voluntary,” Miller told Hogan.
“These government-issued waivers that the government hands out are not worth the paper they are written on,” Cooper said after Wednesday’s hearing.
Floyd Abrams, one of Miller’s lawyers, told reporters after Wednesday’s hearing that her legal team can return to Judge Hogan after some time has passed and seek early release under the argument that jailing her did not coerce her to reveal her source. No such decision has been made to do that, he added.
The judge also could find her in criminal contempt, which is designed as punishment, in addition to the civil contempt she is under, which is designed to coerce Miller to reveal her sources.
New York Times Executive Editor William Keller called Miller’s jailing “a chilly conclusion to an utterly confounding case.”
In a prepared statement, New York Times Publisher Arthur Sulzberger Jr. said: “There are times when the greater good of our democracy demands an act of conscience. 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.”
Abrams called her “an honorable woman adhering the highest tradition of her profession.”
“She should be honored for that and I think in history she will be,” he said.
Bennett also criticized the secrecy surrounding the case, noting that he has not been able to see any of the evidence in the case. “The truth usually comes out with two lawyers sitting in front of a judge saying, ‘Here’s my evidence,’ ‘Here’s my evidence,’ and that hasn’t happened in this case.”
(In re Special Counsel Investigation; Media Counsel: Floyd Abrams, New York City, Robert Bennett, Washington, D.C., for Judith Miller; Theodore Boutrous, Washington, D.C., for Time magazine; Richard Sauber, Washington, D.C., for Matt Cooper) — KM