The NYT Retreats, Incoherently
An "entanglement" exception to the First Amendment?
Of course a deal was possible earlier. That seems fairly obvious reading the NYT's account. But why should Sulzberger feel shame if that was the case? Surely his position is he was upholding a valuable principle and sometimes there are misunderstandings that delay a resolution when you are trying to figure out whether a source's seemingly uncoerced "waiver" is really, truly uncoerced. (Especially when you don't want to "hound" him!) Or is Pinch really ashamed because ....
5. Isn't this a major blow against testimonial immunity for reporters, in practice? Here is how the NYT itself reported the final argument made on behalf of Judith Miller before she was jailed:
Robert S. Bennett, a lawyer for Ms. Miller, urged Judge Hogan to conclude that Ms. Miller would never talk, making confinement pointless.
It's now clear confinement wasn't pointless. It worked for the prosecutor exactly as intended. After a couple of months of sleeping on "two thin mats on a concrete slab," Miller decided, in her words, "I owed it to myself" to check and see if just maybe Libby really meant to release her from her promise of confidentiality. And sure enough-- you know what?--it turns out he did! The message sent to every prosecutor in the country is "Don't believe journalists who say they will never testify. A bit of hard time and they just might find a reason to change their minds. Judy Miller did." This is the victory for the press the Times has achieved. More journalists will now go to jail, quite possibly, than if Miller had just cut a deal right away, before taking her stand on "principle."
6. Does Howie Kurtz have support for his lede? CNN/WaPo media critic Howie Kurtz, covering the Miller story for Post, begins his account with these paragraphs:
Vice President Cheney's chief of staff discussed with New York Times correspondent Judith Miller the fact that the wife of a White House critic worked for the CIA on as many as three occasions before the woman, Valerie Plame, was publicly identified, according to a Times account published today.
During one of the 2003 conversationswith I. Lewis "Scooter" Libby, Miller said, she wrote a version of Plame's name in her notebook. [Emph. added]
Huh? Did Miller really say she wrote a version of Plame's name in her notebook during a conversation with Libby? Not if the version in question was "Valerie Flame." Miller says explicitly
[a]s I told Mr. Fitzgerald, I simply could not recall where that came from, when I wrote it or why the name was misspelled. [Emph. added]
The other time Miller wrote a version of the name ("Victoria Wilson") in her notebook came in July, when she had a phone talk with Libby. Here is her account:
I told Mr. Fitzgerald I believed that before this call, I might have called others about Mr. Wilson's wife. In my notebook I had written the words "Victoria Wilson" with a box around it, another apparent reference to Ms. Plame, who is also known as Valerie Wilson.
I told Mr. Fitzgerald that I was not sure whether Mr. Libby had used this name or whether I just made a mistake in writing it on my own. Another possibility, I said, is that I gave Mr. Libby the wrong name on purpose to see whether he would correct me and confirm her identity.
I also told the grand jury I thought it was odd that I had written "Wilson" because my memory is that I had heard her referred to only as Plame. Mr. Fitzgerald asked whether this suggested that Mr. Libby had given me the name Wilson. I told him I didn't know and didn't want to guess. [Emph. added]
Does Miller here admit to writing the name during the Libby conversation? Not as far as I can see. In the first paragraph, she seems to suggest she might have written the name down before the call began ("had written"). ... P.S.: Maybe Kurtz can be excused for being a bit sloppy or for exaggerating the evidence in his lede. After all, he had a big CNN show to plan! ... 3:12 A.M. link
Photograph of Judith Miller on the Slate home page by Mark Wilson/Getty Images.