By Dan FroomkinSpecial to washingtonpost.com
Friday, September 30, 2005; 12:03 PM
Can it be? That after all that, New York Times reporter Judith Miller sat in jail for 12 weeks to protect the confidentiality of a very senior White House aide -- even though the aide repeatedly made it clear he didn't want protecting?
That somehow Miller was more intent on keeping their conversations secret than the aide was?
Miller was released from jail yesterday and showed up this morning at a federal courthouse to testify before the grand jury investigating the leak of Valerie Plame's identity as a CIA operative.
The man she was protecting, it turns out, was I. Lewis "Scooter" Libby, the chief of staff for Vice President Cheney -- sometimes called "Dick Cheney's Dick Cheney" on account of his considerable influence in the White House.
Over the course of the investigation, Libby had freed several other reporters from any obligation to keep their conversations with him secret -- and his lawyer had apparently told Miller's lawyer more than a year ago that she was free to talk, as well.
So what was Miller doing in jail? Was it all just a misunderstanding? The most charitable explanation for Miller is that she somehow concluded that Libby wanted her to keep quiet, even while he was publicly -- and privately -- saying otherwise. The least charitable explanation is that going to jail was Miller's way of transforming herself from a journalistic outcast (based on her gullible pre-war reporting) into a much-celebrated hero of press freedom.
Note to reporters: There is nothing intrinsically noble about keeping your sources' secrets. Your job, in fact, is to expose them. And if a very senior government official, after telling you something in confidence, then tells you that you don't have to keep it secret anymore, the proper response is "Hooray, now I can tell the world" -- not "Sorry, that's not good enough for me, I need that in triplicate." And if you're going to go to jail invoking important, time-honored journalistic principles, make sure those principles really apply.
Here are the official statements from Miller, her editor and her publisher.
Reporters -- particularly those at the New York Times -- faced quite a challenge last night trying to explain what happened.
David Johnston and Douglas Jehl write in the Times: "For more than a year, [special counsel Patrick J.] Fitzgerald has sought testimony from Ms. Miller about conversations she had with Mr. Libby. Her willingness to testify now was in part based on personal assurances given by Mr. Libby this month that he had no objection to her discussing their conversations with the grand jury, according to those officials briefed on the case."
How did this all come about? Johnston and Jehl write: "The agreement that led to Ms. Miller's release followed intense negotiations among her; her lawyer, Robert Bennett; Mr. Libby's lawyer, Joseph Tate; and Mr. Fitzgerald.
"The talks began with a telephone call from Mr. Bennett to Mr. Tate in late August. Ms. Miller spoke with Mr. Libby by telephone this month as their lawyers listened, according to people who have been briefed on the case. It was then that Mr. Libby told Ms. Miller that she had his personal and voluntary waiver."
Here's where it gets bizarre: "The discussions were at times strained, with Mr. Libby and Mr. Tate's asserting that they communicated their voluntary waiver to another lawyer for Ms. Miller, Floyd Abrams, more than year ago, according to those briefed on the case."
I'm betting that strained is a euphemism.
And in one of the great journalistic understatements of our time, Johnston and Jehl write: "Much about Ms. Miler's role remains unclear."
Susan Schmidt and Jim VandeHei write in The Washington Post that Libby's lawyer said that he had no idea until he was contacted by Miller's lawyer several weeks ago that Miller thought she had gone to jail for his client.
"We are surprised to learn we had anything to do with her incarceration," Tate told The Post.
Fitzgerald and Chief U.S. District Judge Thomas F. Hogan certainly knew. Schmidt and VandeHei note that when Hogan "ordered Miller to jail, he told her she was mistaken in her belief that she was defending a free press, stressing that the government source she 'alleges she is protecting' had released her from her promise of confidentiality."
The disputed conversations between Miller and Libby took place soon after Plame's husband, Ambassador Joseph Wilson IV, went public with information that cast doubt on the administration's case against Saddam Hussein.
So what did Libby say?
Schmidt and VandeHei write: "According to a source familiar with Libby's account of his conversations with Miller in July 2003, the subject of Wilson's wife came up on two occasions. In the first, on July 8, Miller met with Libby to interview him about weapons of mass destruction in Iraq, the source said.
"At that time, she asked him why Wilson had been chosen to investigate questions Cheney had posed about whether Iraq tried to buy uranium in the African nation of Niger. Libby, the source familiar with his account said, told her that the White House was working with the CIA to find out more about Wilson's trip and how he was selected.
"Libby told Miller he heard that Wilson's wife had something to do with sending him but he did not know who she was or where she worked, the source said.
"Libby had a second conversation with Miller on July 12 or July 13, the source said, in which he said he had learned that Wilson's wife had a role in sending him on the trip and that she worked for the CIA. Libby never knew Plame's name or that she was a covert operative, the source said."
John Solomon writes in the Associated Press reminding us: "Until a few months ago, the White House maintained for nearly two years that Libby and presidential aide Karl Rove were not involved in leaking the identity of Valerie Plame, whose husband had publicly suggested that the Bush administration twisted intelligence in the run up to the war in Iraq."
Joe Hagan and John D. McKinnon write in the Wall Street Journal: "Reached last night, Arthur Sulzberger, Jr., publisher of the Times, said, 'I can confirm that Judy Miller is out.' He declined to elaborate except to say the reporter was 'enjoying a steak at dinner, which you are interrupting.' " Couldn't This Have Been Resolved Earlier?
Hagan and McKinnon quote Tate, Libby's lawyer, as asking: "Why didn't somebody call us?"
It's a fine question.
As I wrote in my July 7 column : "The New York Times could answer some questions. For instance, have they contacted Miller's source and asked for an explicit waiver of confidentiality -- and been denied? That would be good to know. And if so, might that not properly put the pressure back on the White House, where it belongs? Wouldn't the Times be happier if the source came forward? Or is it in their interests to turn Miller into a martyr?"
In my August 4 column , I called attention to comments made by New York Times reporter Adam Liptak on NPR . "Here's Liptak on whether jailed New York Times reporter Judith Miller has ever even asked her source for permission to break confidentiality: 'Judy and her lawyers have declined to answer the question of whether they have done anything at all to contact the source and try to obtain a satisfactory waiver.' "
The Bloggers Weigh In
Reporter/blogger Murray Waas writes: "Miller's testimony is central to whether special [counsel] Fitzgerald brings criminal charges against I. Lewis (Scooter) Libby, the chief of staff to Vice President Cheney. Libby was unwavering in telling prosecutors and the FBI that he knew nothing of Plame's covert work for the CIA, even though he spoke to Miller about at length about her and her husband, former ambassador Joseph C. Wilson IV. Whether that account is truthful is something only both Miller and Libby know. Miller's testimony on that issue will be central to any final disposition of the criminal probe, sources close to the investigation have told me for some time now."
The Anonymous Liberal writes: "[N]ow that we know (presumably) that Libby did not learn about Plame from Miller, the question remains: how did Libby first learn about Plame?"
Arianna Huffington has lots of questions she thinks Miller and the Times should answer, including this one: "So, as the image of Judy as a principled, conscience-driven defender of the First Amendment gives way to the image of Judy wearing her 'new' waiver as a fig leaf allowing her to get out and sing, the big question remains: What is she hiding?"
Tom Maquire asks: "[W]ho knew the Times could execute so lovely a pirouette?"
Digby writes: "[I]t seems obvious now that Jeralyn was right; Judy's real issue was being asked about her other sources under oath. It looks like they came to some sort of agreement about that."