Special Counsel Patrick Fitzgerald also opposed the request of Cooper and New York Times reporter Judith Miller to be granted home detention — instead of jail — for refusing to reveal their sources.
Allowing the reporters home confinement would make it easier for them to continue to defy a court order to testify, he said. Special treatment for journalists may "negate the coercive effect contemplated by federal law," Fitzgerald wrote in filings with the court.s
"Journalists are not entitled to promise complete confidentiality — no one in America is," Fitzgerald wrote.
Fitzgerald is investigating who in the administration leaked the identity of CIA officer Valerie Plame, a possible federal crime. Plame's identity was leaked days after her husband, former Ambassador Joseph Wilson, publicly disparaged the president's case for invading Iraq.
Plame's name was first published in a 2003 column by Robert Novak, who cited two unidentified senior Bush administration officials as his sources. Novak has refused to say whether he has testified or been subpoenaed.
Cooper wrote a subsequent story naming Plame, and Miller gathered material but never wrote an article.
Time turned over Cooper's notes and other documents last week, four days after the Supreme Court refused to consider the case. Cooper's attorneys argued that producing the documents made it unnecessary for him to testify.
Miller and Cooper could be ordered to jail as early as Wednesday when U.S. District Judge Thomas Hogan will hear arguments from Fitzgerald and lawyers for the reporters about whether they should testify.
In his court filings, Fitzgerald said it is essential for courts to enforce their contempt orders so that grand juries can get the evidence they need.
Fitzgerald said it would be up to the judge to decide whether to send Cooper to the District of Columbia jail or some other facility. On Friday, Cooper's lawyers argued against sending him to the D.C. jail, saying it is a "dangerous maximum security lockup already overcrowded with a mix of convicted offenders and other detainees awaiting criminal trials."
Miller's lawyers argue that there are no circumstances under which she will talk, but Fitzgerald disagreed.
"There is tension between Miller's claim that confinement will never coerce her to testify and her alternative position that this court should consider less restrictive forms of confinement," the prosecutor wrote.
The case is among the most serious legal clashes between the media and the government since the Supreme Court in 1971 refused to stop the Times and The Washington Post from publishing a classified history of the Vietnam War known as the Pentagon Papers.
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.