Maybe it is a reflection of our affection for journalistic scofflaws, but my wife, Meryl Gordon, and I were, we believe, the only people who attended the weddings of both Judy Miller and Matt Cooper. I cite this odd fact not to flaunt my credentials as the perfect wedding guest, but to stress that not a single sentence that follows should be confused with objective journalism.
I have no idea who was the governmental official who revealed Valerie Plame's CIA identity, or even if Miller and Cooper had the same source, because I knew my friends had too much integrity to drop little hints like, "Think of a treasure trove in a mauve grove." But what I can testify to is the emotional burden that this heavy-handed leak investigation has, over the last year, placed on both reporters, whom I prefer to call Judy and Matt.
Prosecutor Patrick Fitzgerald and his grand jury have hovered like Banquo's ghost at dinners that I have had at the homes of both of these friends. Just a few weeks ago in Manhattan, I was introduced to Hamlet, the small black terrier that Judy had bought to keep her husband, book editor Jason Epstein, company during what she rightly anticipated as a long incarceration. Visiting Matt and his wife, media consultant Mandy Grunwald, in Washington, I was regularly reminded never to mention the word j-a-i-l around 6-year-old Ben, a dinosaur fancier who until recently believed that only bad people go to prison.
Judy is now in federal detention having, as everyone who knows her had expected, bravely refused to name names to the grand jury. Judy, though, does have the consolation that the New York Times has backed her to the hilt at every stage of this arduous process. Matt, on the other hand, was betrayed by his employer when Time Inc. editor-in-chief Norm Pearlstine truckled to Fitzgerald by handing over the Time reporter's notes and e-mails to the grand jury. Yet even though his source had been outed by Pearlstine, Matt was still prepared to maintain his stalwart position before the grand jury until he was released from his personal pledge of confidentiality on the morning of his sentencing hearing by what he called a "stunning" intervention by his source.
What troubles me as both a friend and a reporter who knows the frustrations of covering Washington is that important aspects of this leak saga have been obscured by the protracted legal skirmishing over the last year. The relevant issue was never whether there is an implicit right under federal law for reporters to protect their sources. The legal strategy of the New York Times and Time magazine to pursue this matter to the Supreme Court was always a desperation ploy and, in effect, an effort to run out the clock on Fitzgerald's inquiry.
That is why legalistic pieties about the "rule of law" and the duty of journalists to comply with court orders miss the point. In a statement to the court that she consciously tried to strip of legalisms and obsequiousness, Judy declared that "the right of civil disobedience is based on personal conscience." By refusing to testify, Judy is committing an act of protest, premised on the belief that her professional and ethical obligations trump all other considerations. As she put it Wednesday, "If journalists cannot be trusted to keep confidences, then journalists cannot function and there cannot be a free press."
The Bush White House has been the most locked-down in history for reporters. And future administrations, even Democratic ones, are likely to emulate this nearly impenetrable Karen Hughes-inspired, message-discipline approach, under which even innocuous unauthorized conversations with the press can be potential firing offenses. As a result, the only way that even a glimmer of truth can emerge from places like the White House, the Pentagon, and the CIA will be if government officials trust reporters to keep their identities secret. That means that reporters must stand their ground amid the predictable frenzy of leak investigations. It is not an appealing bargain if a reporter promises to protect a source ... as long as it is convenient.
There have been acrobatic efforts to distinguish between good leaks (say, the Pentagon Papers) and bad leaks (Plame's CIA position). But who is going to make these hair-splitting distinctions? And on what grounds? Those who scream "national security" or even (hysterically) "treason" over the flaming of Plame should recall that these very same arguments were brandished by the Nixon administration against the publication of the Pentagon Papers. Moreover, if so-called bad leaks are those motivated by personal malice or a political agenda, that standard would apply to a high percentage of Washington whistle-blowers. Where in the journalistic handbook does it say that reporters should only obtain confidential information from saintly figures? That would certainly have ruled out Deep Throat (aka Mark Felt), who had authorized unlawful FBI break-ins against the anti-war movement.
I recognize that Judy Miller is a polarizing figure for many who opposed the invasion of Iraq. Slate itself has not always been complimentary about her work. But I am appalled by those who seem to be reveling in her jailing (incidentally, for a story that she never wrote) as retribution for the stories she did write during the run-up to the Iraqi War. Is this what the anti-war movement has come to? I know that using historical analogies can get you into trouble (see Dick Durbin), but this outbreak of anti-Judy-ism seems straight out of the French Revolution. I can see Madame Defarge (these days, wearing a faded "No War for Oil" T-shirt) knitting outside of Judy's jail cell, cheerfully heedless of the implications for a free press.
In one sense, Judy Miller is the perfect embodiment of journalistic principle that reporters are not stool pigeons. She is tough; she is fearless; and she is unyielding on matters of principle. Yet, because Judy has also been a lightning rod, too many people who should know better are tempted to snigger that this is all some martyrdom charade. Nonsense. What is at stake here is nothing less than reporters standing for principle against an out-of-control prosecutor who seems to have lost his sense of proportion. As I think of Judy spending the rest of the summer behind bars and, as I marvel over Matt's close call, I cherish the illusion that, in similar situations, I would be half so courageous.