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Divided by circumstances and against a backdrop of constitutional drama, two journalists took different paths yesterday — one to jail, one to testify before a grand jury about a confidential source.

A federal judge sent New York Times reporter Judith Miller to jail for refusing to identify her confidential sources, and at the same time granted a reprieve to Time magazine correspondent Matthew Cooper who agreed to testify after receiving last-minute permission from his source to reveal the source’s name.
Ms. Miller was led away after the sentencing hearing to the Alexandria Detention Center in Alexandria, Va., where she is expected to remain until she agrees to testify to the grand jury, or is released when the grand jury dissolves as scheduled in October.

Mr. Cooper, who said he bid his son goodbye yesterday morning thinking he might not see him for a long time, said he was surprised to receive “express personal consent from my source” to reveal his name. Mr. Cooper’s lawyer later told The Wall Street Journal that the consent came via a representative of the source. Time Inc., a unit of Time Warner Inc., had already agreed to turn over Mr. Cooper’s notes revealing the source last week, after all its legal options were exhausted, including a rejected appeal for a hearing by the U.S. Supreme Court.
The events were the latest chapter in a case that has become a showdown between prosecutors’ rights and those of journalists. It began in 2003 when diplomat Joseph Wilson wrote an opinion piece for the New York Times criticizing President Bush’s policy in Iraq. In what was presumed to be an effort to discredit Mr. Wilson, several journalists then received information that his wife, Valerie Plame, was a CIA agent. Her name first appeared in a column by syndicated columnist Robert Novak, and later in a Time article by Mr. Cooper. Ms. Miller reported on the matter but never published a story on it.

Disclosing the identity of a covert government operative is a federal crime. Special prosecutor Patrick J. Fitzgerald began investigating the leak and subpoenaing the journalists to testify about their sources. Mr. Novak has never said whether he has spoken with Mr. Fitzgerald, nor has the prosecutor made public statements about him. Many observers assume Mr. Novak has communicated with the prosecutor as part of the probe.

Several major questions remain unanswered. Chief among them: Who was the source for Mr. Cooper and Ms. Miller? Was it the same person? Were there multiple sources?
Another unanswered question is whether Ms. Miller received a waiver from her source but refused it. Ms. Miller and Mr. Cooper both referred in court to “coercive” waivers from sources which they didn’t consider to be true waivers. The waivers, said people involved in the case, were signed by a number of executive-branch employees during Mr. Fitzgerald’s investigation, and automatically waived their rights to keep their names confidential if they provided information to reporters who were later subpoenaed.

Yet another puzzle is that Mr. Fitzgerald’s office hasn’t said what crime it is pursuing. To charge someone with violating the antileaking statute, prosecutors need to show that there is intent to damage national security. Mr. Fitzgerald could be pursuing a perjury charge against a source for lying to the grand jury, or a charge for illegally revealing classified information.

This case has garnered widespread media attention because it shakes what many consider to be a bedrock principle of journalism: the ability to make agreements of confidentiality in an effort to obtain information that otherwise wouldn’t be available. First Amendment scholars say the case could set a legal precedent that would weaken the role of journalists, pivotal as an outside check on government officials, businessmen and others in position of power.

Others have argued that once legal appeals are fruitless, a reporter has no right to violate the law. Mr. Fitzgerald quoted Time Inc. Editor-in-Chief Norman Pearlstine saying “I feel we are not above the law.”

Some journalistic watchdogs disagreed: “I think she’s making the right decision,” Columbia Journalism Review Executive Editor Mike Hoyt said yesterday. “She’s not putting herself above the law. She’s committing an honorable act of civil disobedience. It’s an honorable tradition.”

On the courthouse steps after the hearing, New York Times Executive Editor Bill Keller said: “Anyone who believes the government and other powerful institutions should be watched should feel a chill up their spine,” he said.
Just minutes before the 2 p.m. hearing was to start, Ms. Miller took her press credentials from her neck and handed them to her husband, sitting in the front row behind her. The Pulitzer-Prize winning journalist, who has made her career doing investigative reporting and covering wars in the Middle East, addressed the court in a lengthy statement.

“I’ve chronicled what happens on the dark side of the world where the law is arbitrary,” she told U.S. District Judge Thomas Hogan. “I do not take our freedom for granted. I never have and I never will.

“If journalists can’t be trusted to guarantee confidentiality, then journalists can not function and there can not be a free press.” She added: I do not make confidentiality pledges lightly, but when I do I must honor them.”

Ms. Miller disputed Mr. Fitzgerald’s argument that the sources she’s protecting have already granted waivers allowing journalists to speak about their conversations, arguing that the waivers were demanded by their employers as a condition of employment, and were, therefore, coerced and not credible.

Mr. Fitzgerald countered that no person — be they journalist or federal prosecutor — has the legal right to grant a vow of complete confidentiality.

He argued that given time already spent on the case — 18 months — that “we can’t have all that thrown out so one person can hold on to a promise they couldn’t make.”

In an attempt to convince the judge not to send Ms. Miller to jail, her attorney, Robert Bennett, likened the situation to the story of “Alice in Wonderland,” where she goes down a rabbit hole and ends up in the upside-down room.

“I’m as perplexed as she was,” Mr. Bennett told the judge, noting that Ms. Miller never wrote an article on Ms. Plame and is a respected journalist who was awarded top security clearances by the Defense Department in order to embed with a sensitive unit during the war in Iraq.

“I have the nagging feeling, the nagging feeling, that Judith Miller may be the only person going to jail in this case,” Mr. Bennett told the judge.

Mr. Bennett repeatedly said that he and Ms. Miller didn’t believe that a crime had been committed. To that, Mr. Fitzgerald said, “if someone is sitting around [saying] ‘there’s no crime here,’ then they should come in” and testify before the grand jury.

In providing some insight into his intention with the case, he went on to say that the leak “endangered national security” and that “every eyewitness to the crime should come forward and testify.”

Mr. Cooper, despite his agreement to testify before the grand jury, declined to reveal the name of his source to the public. In addressing the court, Mr. Cooper said he had “agonized” over how to balance his respect for the law with holding true to journalistic principles. But Mr. Cooper expressed sadness at Ms. Miller’s fate. “This is a sad day for journalism and for this country,” he said, standing before a scrum of reporters after the hearing. “It’s a sad time for journalists trying to do their job.”

Whatever the final outcome, the case could hasten calls to jumpstart an effort in Congress to craft a federal shield law to protect journalists from having to reveal confidential sources. More than 30 states have such laws in place that provide varying degrees of protection. In a statement, New York Times Co. Chairman Arthur Sulzberger Jr. urged Congress to “move forward” on a federal version “so that other journalists will not have to face imprisonment for doing their jobs.”

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