New York Times reporter Judith Miller refused Wednesday to reveal her source in the leak of an undercover CIA operative's identity, while Time magazine's Matthew Cooper agreed to testify about his sources.
Both reporters faced threats of jail time source in a protracted First Amendment wrangle with the government.
Cooper told U.S. District Judge Thomas Hogan that he would now cooperate with a federal prosecutor's investigation because his source gave him specific authority to discuss their conversation. "I am prepared to testify. I will comply" with the court's order, Cooper told Hogan.
Cooper's turnaround came at a hearing at which Hogan was to consider whether to jail Cooper and Miller for defying his order to testify about their confidential sources in the leak of CIA agent Valerie Plame's identity.
Cooper took the podium in the court and told the judge, "Last night I hugged my son good-bye and told him it might be a long time before I see him again."
"I went to bed ready to accept the sanctions" for not testifying, Cooper said. But he told the judge that not long before his early afternoon appearance, he had received "in somewhat dramatic fashion" a direct personal communication from his source freeing him from his commitment to keep the source's identity secret.
Hogan held the reporters in civil contempt of court in October, rejecting their argument that the First Amendment shielded them from revealing their sources. Last month the Supreme Court refused to intervene.
In court documents filed Tuesday, special counsel Patrick Fitzgerald urged Hogan to take the unusual step of jailing the reporters, saying that may be the only way to get them to talk.
"Journalists are not entitled to promise complete confidentiality — no one in America is," Fitzgerald wrote.
Fitzgerald had disclosed Tuesday that a source of Cooper and Miller had waived confidentiality, giving the reporters permission to reveal where they got their information. The prosecutor did not identify the source, nor did he specify whether the source for each reporter was the same person.
Cooper said he had been told earlier that his source had signed a general waiver of confidentiality but that he did not trust such waivers because he thought they had been gained from executive branch employees under duress. He told the court that he needed not a general waiver but a specific waiver from his source, which he did not get until Wednesday.
"I received express personal consent" from the source, Cooper told the judge.
Hogan and Fitzgerald accepted Cooper's offer.
"That would purge you of contempt," Hogan said.
Last week, Time Inc., last week provided Fitzgerald with records, notes and e-mail traffic involving Cooper, who had argued that it was therefore no longer necessary for him to testify. Time also had been found in contempt and officials there said after losing appeals it had no choice but to turn over the information.
The case is seen as a key test of press freedom and many media groups have lined up behind the reporters. Before Wednesday's hearing, a small rally was held in a park beside the courthouse to urge Congress to pass a federal shield law protecting reporters from having to disclose their confidential sources. The rally, organized by the Communications Workers of America, drew about three dozen people in Washington. Organizers said similar rallies were occurring in Cleveland, Denver, Minneapolis, New York and Los Angeles.
Thirty-one states and the District of Columbia have shield laws protecting reporters from having to identify their confidential sources.
Fitzgerald is investigating who in the Bush administration leaked Plame's identity. Her name was disclosed in a column by Robert Novak days after her husband, former Ambassador Joseph Wilson, impugned part of President Bush's justification for invading Iraq.
Wilson was sent to Africa by the Bush administration to investigate an intelligence claim that Saddam Hussein may have purchased yellowcake uranium from Niger in the late 1990s for use in nuclear weapons. Wilson said he could not verify the claim and criticized the administration for manipulating the intelligence to "exaggerate the Iraqi threat."
Novak, whose column cited as sources two unidentified senior Bush administration officials, has refused to say whether he has testified before the grand jury or been subpoenaed. Novak has said he "will reveal all" after the matter is resolved and that it is wrong for the government to jail journalists.
Disclosure of an undercover intelligence officer's identity can be a federal crime if prosecutors can show the leak was intentional and the person who released that information knew of the officer's secret status.
Cooper spoke to White House deputy chief of staff Karl Rove after Wilson's public criticism of Bush and before Novak's column ran, according to Rove's lawyer, Robert Luskin, who denies that Rove leaked 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 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.
Fitzgerald has said that his investigation is complete except for testimony from Cooper and Miller.