Elphaba

I'm comfortable with Time's position in that once the Supreme Court ruled that the notes must be turned over, there could be no further appeal. To not do so would be difficult to support because the source arguably committed a crime.

This article adds some light on why Cooper and Miller may have been drawn in on this:

What Karl Rove Told Matt Cooper
By Michael Isikoff
Newsweek

18 July issue

July 18 issue - It was 11:07 on a Friday morning, July 11, 2003, and Time magazine correspondent Matt Cooper was tapping out an e-mail to his bureau chief, Michael Duffy. "Subject: Rove/P&C," (for personal and confidential), Cooper began. "Spoke to Rove on double super secret background for about two mins before he went on vacation..." Cooper proceeded to spell out some guidance on a story that was beginning to roil Washington. He finished, "please don't source this to rove or even WH [White House]" and suggested another reporter check with the CIA.

Last week, after Time turned over that e-mail, among other notes and e-mails, Cooper agreed to testify before a grand jury in the Valerie Plame case. Explaining that he had obtained last-minute "personal consent" from his source, Cooper was able to avoid a jail sentence for contempt of court. Another reporter, Judith Miller of The New York Times, refused to identify her source and chose to go to jail instead.

For two years, a federal prosecutor, Patrick Fitzgerald, has been investigating the leak of Plame's identity as an undercover CIA agent. The leak was first reported by columnist Robert Novak on July 14, 2003. Novak apparently made some arrangement with the prosecutor, but Fitzgerald continued to press other reporters for their sources, possibly to show a pattern (to prove intent) or to make a perjury case. (It is illegal to knowingly identify an undercover CIA officer.) Rove's words on the Plame case have always been carefully chosen. "I didn't know her name. I didn't leak her name," Rove told CNN last year when asked if he had anything to do with the Plame leak. Rove has never publicly acknowledged talking to any reporter about former ambassador Joseph Wilson and his wife. But last week, his lawyer, Robert Luskin, confirmed to NEWSWEEK that Rove did - and that Rove was the secret source who, at the request of both Cooper's lawyer and the prosecutor, gave Cooper permission to testify.

The controversy arose when Wilson wrote an op-ed column in The New York Times saying that he had been sent by the CIA in February 2002 to investigate charges that Iraq was trying to buy uranium from the African country of Niger. Wilson said he had found no evidence to support the claim. Wilson's column was an early attack on the evidence used by the Bush administration to justify going to war in Iraq. The White House wished to discredit Wilson and his attacks. The question for the prosecutor is whether someone in the administration, in an effort to undermine Wilson's credibility, intentionally revealed the covert identity of his wife.

In a brief conversation with Rove, Cooper asked what to make of the flap over Wilson's criticisms. NEWSWEEK obtained a copy of the e-mail that Cooper sent his bureau chief after speaking to Rove. (The e-mail was authenticated by a source intimately familiar with Time's editorial handling of the Wilson story, but who has asked not to be identified because of the magazine's corporate decision not to disclose its contents.) Cooper wrote that Rove offered him a "big warning" not to "get too far out on Wilson." Rove told Cooper that Wilson's trip had not been authorized by "DCIA" - CIA Director George Tenet - or Vice President Dick Cheney. Rather, "it was, KR said, wilson's wife, who apparently works at the agency on wmd [weapons of mass destruction] issues who authorized the trip." Wilson's wife is Plame, then an undercover agent working as an analyst in the CIA's Directorate of Operations counterproliferation division. (Cooper later included the essence of what Rove told him in an online story.) The e-mail characterizing the conversation continues: "not only the genesis of the trip is flawed and suspect but so is the report. he [Rove] implied strongly there's still plenty to implicate iraqi interest in acquiring uranium from Niger... "

Nothing in the Cooper e-mail suggests that Rove used Plame's name or knew she was a covert operative. Nonetheless, it is significant that Rove was speaking to Cooper before Novak's column appeared; in other words, before Plame's identity had been published. Fitzgerald has been looking for evidence that Rove spoke to other reporters as well. "Karl Rove has shared with Fitzgerald all the information he has about any potentially relevant contacts he has had with any reporters, including Matt Cooper," Luskin told NEWSWEEK.

A source close to Rove, who declined to be identified because he did not wish to run afoul of the prosecutor or government investigators, added that there was "absolutely no inconsistency" between Cooper's e-mail and what Rove has testified to during his three grand-jury appearances in the case. "A fair reading of the e-mail makes clear that the information conveyed was not part of an organized effort to disclose Plame's identity, but was an effort to discourage Time from publishing things that turned out to be false," the source said, referring to claims in circulation at the time that Cheney and high-level CIA officials arranged for Wilson's trip to Africa.

Fitzgerald is known as a tenacious, thorough prosecutor. He refused to comment, and it is not clear whether he is pursuing evidence that will result in indictments, or just tying up loose ends in a messy case. But the Cooper e-mail offers one new clue to the mystery of what Fitzgerald is probing - and provides a glimpse of what was unfolding at the highest levels as the administration defended a part of its case for going to war in Iraq.