The biggest loser in Judith Miller's capitulation yesterday to special prosecutor Patrick Fitzgerald isn't freedom of the press. And it isn't Miller, the New York Times reporter whose reporting on weapons of mass destruction in Iraq had previously sullied her reputation.
It's the Times editorial page.
Ever since Miller refused to testify before a grand jury in the Valerie Plame case and a federal judge issued her a contempt citation and the jail sentence that goes with it, the Times editorial page has aligned itself with her absolutist stance that she should never, ever be forced to talk. On Oct. 16, 2004, the editorial page stated:
The specter of reporters' being imprisoned merely for doing their jobs is something that should worry everyone who cherishes the First Amendment and the essential role of a free press in a democracy.
The page reiterated support of Miller with multiple editorials (Oct. 16, 2004; Dec. 5, 2004; Dec. 20, 2004; Feb. 17, 2005; June 28, 2005) and one on July 7, 2005, as she entered the Alexandria Detention Center. Nor did the page abandon Miller once she was behind bars, stridently calling for her release on July 19, 2005; Aug. 15, 2005; Aug. 29, 2005; and Sept. 19, 2005, drawing unintentional laughs by heralding the European petition for Miller's behalf signed by "writers, journalists and thinkers including" Günter Grass, Bernard-Henri Lévy, and Pedro Almodovar. You can almost hear Fitzgerald say, "If Gunter, Bernard-Henri, and Pedro want me to spring Judy, well, okay!"
The page's Aug. 29, 2005, editorial universalized her plight: "If Judith Miller loses this fight, we all lose."
We lose? I'm sorry, but the only losers I count today are Miller and the Times editorial page, which she left holding the soiled bag of her absolutism. As today's news accounts ( Washington Post, New York Times, Wall Street Journal, Los Angeles Times) report, Miller has accepted a waiver to testify from confidential source I. Lewis "Scooter" Libby, Vice President Cheney's chief of staff, and the get-out-of-jail card that comes with it.
Don't get me wrong about Miller and Fitzgerald's investigation. I opposed the investigation even before there was an investigation, writing that it's highly unlikely that anybody broke the law (the Intelligence Identities Protection Act) that has been invoked. I've written reams denouncing Fitzgerald's misguided investigation, standing up for reporters' privilege. I've given unsolicited legal advice to Miller and Matthew Cooper, the Time reporter who eventually answered subpoenas in the case, telling them to dump lawyer Floyd Abrams and hire my former paladin, Bruce Sanford. I even threw a kiss to that impossible minx, Miller, when she promised not to talk.
But there is no way for Miller—and by extension the Times editorial page, which staked so much on her stance—to deny that they have lost hugely. From the get-go, Miller refused to accept waivers from sources releasing them to talk. In particular, she and the Times editorial page disdained the "general waivers" that prosecutor Fitzgerald had obtained from White House officials and presented to journalists under subpoena. On July 19, 2005, the editorial page stated, "In fact, these documents were extracted by coercion, so they are meaningless. Employees who are told they are required to sign waivers to keep their jobs are not sincerely freeing reporters from promises to keep their identities secret."
The Times was not alone on this score. As the Washington Post's Howard Kurtz reported on July 13, 2005, "Postreporters who answered prosecutors' questions also declined to rely on the paper waivers."