The Strange Case of Judith Miller

Posted 10:39 p.m., Sept. 30, 2005

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A few months ago, the Reporters Committee for Freedom of the Press put out a request for journalists to sign an online petition to support reporters imprisoned on contempt-of-court charges. If you go there, you'll find my name among the nearly 5,500 signatures.

Though the petition never mentions jailed New York Times reporter Judith Miller by name, it does refer to "an unprecedented number of journalists" who recently have been cited for contempt in federal court after refusing to divulge the names of sources while reporting on stories like the Wen Ho Lee case, the outing of CIA operative Valerie Plame and a bribery case involving former Providence, R.I., mayor Buddy Cianci.

All that said, the timing of the petition was all about Miller.

I don't sign petitions very often, and I don't regret signing this one. I am quite concerned about what looks like a trend of the judiciary to try to use journalists to crack open their cases.

(Yes, that did happen to me once, a decade ago. I was subpoenaed during a run-of-the-mill criminal trial after receiving sealed records on the case from an anonymous source. The prosecutor wanted to know who faxed them to me. I didn't testify to anything beyond what I had published, and neither was I arrested. Perhaps today, I would be.)

Reporters aren't law enforcement agents, and shouldn't be. In most states, there are laws granting reporters the right to protect sources' confidentiality, subject to certain restrictions. The federal government offers no such protections. It should.

Still, if all this sounds to you like a warm-up to some sort of rhapsodizing about the announcement late last night that Judith Miller is free, that's not my issue.

I'm just confused.

The party line we're getting from Miller and the Times is that Judith has suddenly been released from her obligation to protect her source after 85 days, and so she was free today to testify before a grand jury in the Plame probe.

Excuse me? It just doesn't make sense.

First of all, Scooter Libby--the chief of staff to Vice President Dick Cheney who has already been outed by Time magazine reporter Matthew Cooper as a primary source in the Plame case--is saying that Miller, likewise, had already been released from her promise.

Before acknowledging that Libby was her source, Miller said she wasn't satisfied that the release she had received was sufficiently voluntary, as if Libby might have somehow had his arm twisted--by who? Cheney?--and forced to release her from their agreement. It wasn't, Miller grandly claimed, "a personal, explicit, voluntary waiver."

Now Libby, through his attorney Joseph Tate, is saying that's simply not the case. Had Miller only asked, she would have been personally, voluntarily and explicitly released from the pledge, and that could have happened a year ago. Libby and Tate, the Washington Post reports, were "surprised to learn we had anything to do with her incarceration."

So, what does this mean? She never asked? She was jailed and spent 12 weeks sleeping on a mattress on a concrete floor--based on a mistaken impression? I have a little trouble buying that. Too many lawyers were involved, and one of them was Floyd Abrams, the best First Amendment attorney in the country. We're supposed to believe these attorneys weren't in touch all this time?

Miller says she received the waiver in recent days from Libby in a letter and by phone. And she says that she received the OK from the special prosecutor that her testimony before the grand jury in the Plame case would be limited exclusively to her conversations with Libby--presumably the only matter of interest to the prosecutor in the first place. Remember, Miller didn't even write about the Plame case, merely made a few peremptory inquiries.

All this begs the question. What the hell was she doing in jail? What is this really all about?

Here's what Miller says:

"I served 85 days in jail because of my belief in the importance of upholding the confidential relationship journalists have with their sources. Believe me, I did not want to be in jail. But I would have stayed even longer if I had not achieved these two things: the personal waiver and the … narrow testimony. I could not have testified without both of them."

-- Judith Miller,
press conference
Sept. 30, 2005

But there's a strange and interesting twist here. At the same time that Miller was heading to jail, Time magazine's Matthew Cooper made a different decision--based on having been released by his source--Libby--from his own pledge of confidentiality. He testified before the grand jury. Later, he wrote the whole thing up in Time magazine, after which he hit the talk show circuit. That all happened months ago.

So at a minimum, Miller was protecting someone for whom no more real damage could be done. Probably that's not reason enough to break a promise. But wouldn't it at least provide a suitable rationale for Miller to ask Libby to make explicit his waiver of their deal?

Cooper's decision received a lot of criticism at the time. Certainly, I was uncomfortable with it. I am reluctant as a reporter to grant confidentiality--I'm a reporter, and if I'm interviewing you my intention is to publish what I learn, not to keep secrets. But sometimes it makes sense. I once granted anonymity to a guy who I felt had a reasonable fear for his safety had he been publicly identified. And I, too, have spoken to politicians "on background." I don't like it, but sometimes you do it to get information that otherwise would not be obtainable.

What bothered me about Cooper's decision is its implications: I don't want sources worrying that my pledge of anonymity is conditioned upon whether a prosecutor later pressures me to rescind the pledge. That will only make people clam up, and that means vital information will sometimes never make it to the public. That's not good in a democracy. "Sunlight is the best disinfectent," as Justice Louis Brandeis once said.

New York Times Executive Editor Bill Keller was one of the first out of the gate with this analysis after Cooper testified:

"I do differ with Time. … In the first case, it sends a signal to potential whistle blowers -- I know this is not a whistle blower case -- but to potential whistle blowers or people who see wrongdoing behind the secrecy of government; it sends a message to them that big media companies won't necessarily stand by their reporters if those reporters have promised you anonymity.

"And the second thing that Time's decision did, the nature of their statement, with all of its talk about reporters not being above the law, it suggests that this is something that we do in a frivolous way or out of arrogance, and that's -- nobody can read the history of this case and believe that that's true. This has been agony from day one."

-- Bill Keller,
executive editor, New York Times,
The NewsHour with Jim Lehrer
July 6, 2005

But now, for whatever reason, Judith Miller has made the same decision. Sure, she spent 12 weeks in jail first, but ultimately she is doing nothing at all different than what Cooper has done.

It's all very strange. The grand jury's term was about to expire in a couple of weeks anyway--meaning, presumably, that Miller would have been freed in short order. So why make this move now?

Granted, sitting in jail is no fun, but if this was a stand on principle to begin with, why cut short this First Amendment crusade now, simply to backtrack and do the very thing Keller once worried would send such a negative message to potential whistleblowers?

There are some who suggest that this whole episode is a ploy to refurbish Miller's star power, which lost much of its luster after it became clear that she had served as a propaganda tool for the Bush administration. That was during the run-up to war against Iraq, when Miller wrote a series of stories detailing the advanced state of Saddam Hussein's weapons of mass destruction program.

Those stories, like the Bush administration's initial justification for the war, turned out to be badly off the mark, and were based on interviews with a number of shady characters--including the infamous Ahmed Chalabi. They have since been discredited.

Under that theory, Miller sacrificed several months of her life, sitting in jail, in order to remake herself as a high-profile First Amendment martyr, thereby reclaiming some of the acclaim that she lost to the WMD debacle.

Is that what's going on? I don't know. Too much of this doesn't make any sense. I will grant that the Miller-makeover story line is the only thing that remotely makes any sense, but that doesn't mean it's right. It's impossible to say.

This is all very strange indeed.

-- Kevin Featherly

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