WASHINGTON — A special prosecutor said Tuesday that a Time magazine reporter had to submit to questioning or face jail in connection with an investigation into the outing of a CIA operative, despite a decision last week by the magazine's corporate parent to cooperate in the probe.
Setting the stage for a hearing today, federal prosecutor Patrick J. Fitzgerald said in court papers that he needed the testimony of Matthew Cooper, even though Time Inc., Cooper's employer, had turned over e-mails and notes about his sources.
Fitzgerald also urged a federal judge to reject bids by Cooper and New York Times reporter Judith Miller to be permitted to be detained at home, instead of jail, for refusing to cooperate in the nearly two-year case.
The journalists' fate, and one of the most dramatic showdowns between the government and the press in years, is to be decided today before U.S. District Judge Thomas F. Hogan.
Hogan held the reporters and Time in civil contempt last fall for refusing to cooperate in Fitzgerald's investigation. The Supreme Court upheld his ruling last week. Hogan has demanded to know the identities of the sources the journalists spoke with in researching or reporting on the matter.
On Friday, in a move that drew fire from media groups, Time turned over documents demanded by Fitzgerald that it said shed light on the sources Cooper had used.
The publishing concern said the action was designed to address its own contempt order, and hopefully to avert the possibility that its reporter might end up in jail.
But Fitzgerald said the action did not go far enough. "After viewing the documents provided by Time Inc., Cooper's testimony remains necessary for the special counsel's investigation," Fitzgerald wrote Tuesday. The prosecutor did not elaborate.
The reporters could be off to jail soon. Hogan indicated at a hearing last week that he intended to imprison Cooper and Miller if they continued to defy him.
The judge, who also threatened to fine Time, is to decide at the hearing whether the publishing concern should be penalized despite its cooperation.
In a sharply worded filing Tuesday -- including criticism of the reporters by other journalists -- Fitzgerald upped the stakes, suggesting that Cooper and Miller be held in criminal contempt if they continued to ignore the court orders.
Both face four months in jail for civil contempt; a separate finding of criminal contempt could add months to their confinement.
The prosecutor chided their pleas for home confinement, saying a "forced vacation at a comfortable home is not a compelling form of coercion." As an alternative, the journalists had sought confinement at a federal prison camp -- a proposal Fitzgerald also opposed.
Time spokeswoman Dawn Bridges declined to comment.
A spokeswoman for the New York Times, Catherine Mathis, said, "We intend to respond to the special counsel's views in court."
In court papers, Fitzgerald said that by promising confidentiality to sources, Cooper was claiming a power for journalists to "honor a commitment that no member of the executive branch can make ... even the attorney general of the United States." He said journalists should not receive special treatment when they violated court orders.
Besides citing Time's cooperation, Cooper, who has a 6-year-old son, had argued that incarceration would unduly punish his family.
Miller separately argued that confinement in her case was futile because she had no intention of revealing her sources, and said she was upholding long-standing traditions of a free press.
Countering that argument, Fitzgerald cited journalists, 1st Amendment scholars and others who disagreed "with the position Miller is taking at the behest of the New York Times." Among those he cited was the top editor of Time Inc., Norman Pearlstine, who made the decision to turn over the information about the sources Cooper used.
"Pearlstine is by no means alone among editors who adhere to the unremarkable proposition that the law must be obeyed by all," Fitzgerald wrote.
The prosecutor highlighted an article in the March-April issue of the Columbia Journalism Review, which said that many reporters and press advocates were chagrined that the case of CIA Agent Valerie Plame had become a test of journalists' ability to maintain confidential sources. The magazine said that many journalists believed that the reporters' sources, in exposing and endangering a covert operative, had committed an act that was not worth protecting.
Miller, a Pulitzer Prize-winning investigative reporter for the New York Times who spent time embedded with U.S. troops in Iraq, included testimonials from military officers familiar with her work in the papers she filed Friday in a plea to avoid jail. She also cited her health concerns, and those of her husband, 76.
Fitzgerald rejected those considerations too. "Certainly, one who can handle the desert in wartime is far better equipped than the average person jailed in a federal facility," he wrote.