According to news reports, on 5 July, special prosecutor Patrick J. Fitzgerald filed legal documents at the court in preparation for a hearing today at the Federal District Court in Washington, DC. The hearing will decide whether Time journalist Matthew Cooper and New York Times journalist Judith Miller are to be jailed for civil contempt for refusing to reveal confidential sources.

In his submissions to the court, 4 pages for Cooper and 21 pages for Miller, Fitzgerald sets out a number of arguments. On the issue of the offence itself, the special prosecutor argues that support for Miller from key “opinion leaders” might change if she were charged with criminal contempt. He also claims that rather than taking “a moral and principled stand,” as argued by her lawyers, Miller’s opinion might change once she is imprisoned. Fitzgerald also criticises Miller’s publisher Arthur Sulzberger Jr. for continuing to support her position that she is above the law.

Regarding the possibility of jail, Fitzgerald argued that house arrest is an unsuitable punishment, as it would lessen the impact of the civil contempt charge; he then argued that the journalists should not be able to choose their correctional facility and that a local prison in the District of Columbia was more suitable.

Speaking about the case, IPI Director Johann P. Fritz said, “I am becoming extremely worried that the case is no longer about an investigation into those who exposed the identity of an intelligence operative, but is now a battle, at all costs, to force the journalism profession to accept that they have no right to protect their sources in the Federal courts.”

“Such an unseemly battle is not only deeply damaging to the administration of justice it undermines the ability of journalists to carry out their watchdog role within U.S. society to hold individuals and institutions to account for their actions.”

“I am also concerned that by arguing for the application of criminal contempt, the prosecutor is attempting to use the law as a tool to break Miller’s and Cooper’s will. If, as the prosecutor says, there is an arguable duty that the law should be obeyed there must also be an attendant argument that laws should be applied dispassionately and objectively. I do not see that happening in this present case.”

“As a result, it seems to me that the arguments made by Cooper and Miller are founded on firm ethical principles as opposed to disrespect for the law; while the prosecutor’s arguments seem designed to apply the greatest possible pressure on the journalists in the belief that they will eventually crack.”