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."
Miller held similar disdain for "specific waivers," personal waivers sources sign freeing specific reporters to talk to the grand jury. Times Executive Editor Bill Keller outlined Miller's waivers views in the same Post story:
The simple fact is that Judy made a promise to a source that she would protect his anonymity. That source has not granted her any kind of a waiver from that promise, at least one that she finds persuasive or believes was freely given, and she feels bound by that pledge. And more than that, she feels that, if she breaks that pledge, she will compromise her ability to do her job in the future.
The spin that the Miller camp appears to be putting on her belated acceptance of a Libby waiver is that something changed between the time she was jailed and yesterday. Times publisher and Miller friend Arthur Sulzberger Jr. told his own news pages today that she "has finally received a direct and uncoerced waiver, both by phone and in writing, releasing her from any claim of confidentiality and enabling her to testify." [Emphasis added.]
Said Keller in a statement reported in the Post, "Judy refused to testify in this case because she gave her professional word that she would keep her interview with her source confidential. In recent days, several important things have changed that convinced Judy that she was released from her obligation." [Emphasis added.]
What changed? On one level, nothing: Libby attorney Joseph Tate told the Post that he had informed Miller attorney Floyd Abrams a year ago, explaining that Libby's waiver was voluntary and that Miller was free to testify. On another level, everything: At some point this year, Miller replaced Abrams with Bob Bennett. Tate was astonished to learn several weeks ago when Bennett contacted him that Miller did not regard his earlier communication as license to talk.
"We are surprised to learn we had anything to do with her incarceration," Tate told the Post.
How could Miller have misunderstood? It's well known that her fellow First Amendment martyr, Cooper, who narrowly avoided becoming Miller's cellmate when Karl Rove gave him a waiver, previously got one from Libby and gave limited testimony in August 2004. Cooper wrote up the account in Time magazine (July 25, 2005, issue) and recounted it on the July 17, 2005, edition of Meet the Press. Can we really believe 1) that Miller misunderstood the original deal Tate conveyed to Abrams; or 2) that she and her lawyer missed the Time and Meet the Press revelations that Libby was willing to talk?
What's more likely is that Miller was tiring of jail after her 12-week stay—and who wouldn't be?— and that she conveniently "rediscovered" Libby's offer once Fitzgerald threatened her anew with criminal contempt charges, obstruction of justice, and extension of the grand jury, which could have given her 18 months more to stew in her cell. One clue that I might be right: Miller's former attorney Abrams, a charming man who returns phone calls, did not return the Post's. He also declined to discuss the question of the year-old waiver with reporters covering the story for the New York Times, his sometime employer.
If Abrams isn't talking, there's much, much more to say, and I think we can say it for him. Judith Miller surrendered her ballyhooed principles yesterday and called it victory. The real winner for anybody with eyes to read a newspaper is Patrick Fitzgerald.
One last point: The Times editorial page deserves a big loss in its column if for no other reason than they called this mess down on Miller, Cooper, Novak, Pincus, Russert, Kessler, the Times, et al. with a self-contradictory Oct. 2, 2003, editorial. The editorial both fretted that Attorney General John Ashcroft's Justice Department and the White House weren't investigating the case aggressively and fretted that a thorough investigation would ensnare the press, too.
"The Justice Department should focus its attention on the White House, not on journalists," stated the editorial.
But you can't investigate a crime that consists of leaking to the press without getting the press to talk. Maybe the paper's publisher and editorial board have figured that out now. They should have grasped it then, before requesting the epic collision of first principles from which Judith Miller has just slunk away.
What will Judith Miller do next? Send your speculations to firstname.lastname@example.org. (E-mail may be quoted by name unless the writer stipulates otherwise.)