The odd odyssey of Judith Miller, part 2

Judith Miller and her newspaper, the New York Times, are finally telling us at least some of what they know about the brouhaha that landed Miller in jail for 85 days this summer and the issue of a reporter’s privilege into the current mix of controversies that now surround the Bush administration.

The Times has written a long story about Miller and the reporting that led to her grand jury testimony that it was Vice President Dick Chaney’s top aide, Lewis Libby, who probably told her about Valarie Plame, the wife of Ambassador Joseph Wilson, a major critic of the administration’s war in Iraq. Miller has written a long piece about what she told the grand jury investigating the leaking of Plame’s name — which would, in some circumstances, be illegal because she was a covert agent for the Central Intelligence Agency.

In these two articles, the Times and Miller attempt to answer a number of questions. Among them:

Why did Miller choose to go to jail when her source had released her from her pledge of confidentiality?

Miller said she did not believe the release was voluntary. When Libby’s lawyer told Miller’s lawyer about the release, he also described the testimony Libby had given and inquired about what Miller might testify to. Ultimately, Miller’s lawyer interpreted this conversation as Libby saying that he did not wish Miller to talk about certain things they had discussed. Consequently, she decided to go to jail.

The interpretation that Miller’s lawyer gave to this conversation is vehemently denied by Libby’s lawyer. He says he and his client never put any restrictions on Miller’s testimony and never meant to imply that they wanted any restrictions.

Why did Miller choose to end her jail time and testify?

The conversation between the lawyers (by this time Miller had a new lawyer) was renewed after Miller had spent more than two months in jail. She had gone in believing that she would be released by at least the end of October when the grand jury’s term expired. But she learned that a new grand jury might be formed to continue the investigation, and that would mean even more time in jail.

She told her new attorney to reach out to Libby’s lawyer again. The new lawyer did so and found Libby and his lawyer still insisting that his release of Miller from her pledge was voluntary. After receiving a letter to this effect and aftera conference call that included Miller, Libby and the lawyers, Miller said she “accepted his permission” to testify and got out of jail.

Was it all just a misunderstanding among lawyers?

That’s what it seems to boil down to — that is, if one gives Miller the benefit of the doubt. There are many who are still raising questions (such as blogger Mickey Klaus on Slate.com). Miller has had many critics in this controvery, and before any of this occurred, she was the target of some stinging rebukes for her straight-line reporting of the Bush administration’s arguments that weapons of mass destruction existed in Iraq and that the U.S. should invade that country to eradicate them. Some critics have claimed that her jail time was simply a grandstanding move whereby she was trying to recoup her reputation.

This is a fascinating story, and the journalistic world seems to be dividing into Friends of Judith Miller and Not-Friends of Judith Miller. One of the most interesting aspects is the role that the New York Times and its editors played in all of this. (See a previous posting about this controversy.) To their credit, they backed Miller with publicly-declared support and money for legal expenses. But at the crucial points in the story, they seemed to be bystanders at best. Miller made the decisions; they simply went along.

And one of those decisions — one that breaks a new bit of legal ground to my mind — was that a reporter should judge the quality of a release from a pledge of confidentiality. Miller said she could not accept Libby’s release because she felt that it was coerced.

But what if it had been? So what? Matthew Cooper, the Time magazine reporter who faced the same situation as Miller did this summer, did not raise that issue when Libby released him from his pledge of confidentiality.

Miller’s parsing out of the release (voluntary, not voluntary) places too much of a burden on the reporter. Her stand not to reveal her source was probably the correct one (despite some critics who say it wasn’t). But her decision to make a judgment about whether or not the release from her confidentiality pledge was voluntary was not a wise one. It cost her nearly three months in jail, and the timing and manner of her release has done nothing to quiet her critics.

And, more importantly, her stand has not advanced the cause of a legal privilege for journalists.

Jim Stovall (Posted Oct. 16, 2005)

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Greg Mitchell of Editor and Publisher has written an excellent summary of the pieces in the New York Times and also identifies some of the questions they raise. In a separate piece, he calls for the Times to fire Miller. (Links no longer work.)

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About Jim Stovall

Jim Stovall, a retired journalism prof, is now a novelist, self publisher, watercolorist, gardener, woodworker and beekeeper -- among others things.

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