By: William E. Jackson Jr.
The latest appeal to keep The New York Times? Judith Miller and Time magazine?s Matthew Cooper from being sent to jail for refusing to reveal sources in the case of Valerie Plame?s exposure as a CIA operative was filed amid pessimism that the D.C. Circuit Court of Appeals will overturn their sentences for contempt of court. Nevertheless, on March 23, a friend-of-the-court brief was submitted by 36 news organizations arguing that there is substantial evidence ?to doubt that a crime has been committed? by the leaker.
Meanwhile, over a period of weeks, Miller has published only one story in the Times on her current beat, the Iraqi oil-for-food program. But a very active life has continued for her on the lecture circuit in the role of principled reporter prepared to go to jail to protect confidential sources.
At a March 17 event at the University of California at Berkeley, billed as ?The Consequences of Confidential Sources: Jail?,? Miller was interviewed by a very protective friend, Lowell Bergman. A longtime producer for CBS?s ?60 Minutes,? Bergman currently works on investigative reporting projects for Miller’s paper.
Bonnie Powell of the university?s news center reported that Miller acidly proclaimed journalists ?are not perfect. We?re not saints. But try running a functioning democracy without a free press.? And who better to make the case regarding non-sainthood, following her dangerously wrong 2002-2003 reporting on WMD in Iraq, which at times was based on outright collusion with confidential sources in and out of government who had wanted the United States to invade Iraq? Miller, in fact, praised Ahmad Chalabi for “never lying about his motives,” and noted his political comeback in Baghdad.
In her public appearances, she makes the argument that the fight is not about Judy Miller — it never is — but about ?shutting down the flow of information. I?m not afraid of going to jail for my beliefs. It?s a proud American tradition. I am not a martyr, and I don?t want to go to jail, but I will.?
She repeated several times at Berkeley (I have watched the video) her excuse that ?you go with what you?ve got,? when referring both to her WMD sources and the unidentified leakers she is now protecting in the Plame case. Miller carries on with her now-tired argument that if she was duped by her unnamed sources on WMD, well, so was the Bush Administration.
Miller indicated she’s not apologizing for believing there were WMDs in Iraq until the president does. ?I think I was given information by people who believed the information they were giving the president,? she told Bergman. Ultimately, Miller said, she ?wrote the best assessment that I could based on the information that I had.?
She attempted to tie the controversy over her WMD reporting to her current court struggles, and she partly blamed others when arguing that she had heard only after the fact that there had been people who had reservations about the WMD intelligence she was receiving. ?I wish they had come forward at the time to express those reservations,? she said. ?To me, this case that I am now involved in emphasizes the importance of getting as many people as possible to come forward with a dissenting view, or allegations of wrongdoing.?
Despite her eloquent passion in defense of freedom of the press, her historical revisionism on the WMD story, when passing off such falsehoods, boggles the mind.
What is Miller?s public campaign — waged all across the country — all about, other than a transparent attempt to rehabilitate her damaged reputation as a journalist? As quoted by James Rainey of the Los Angeles Times on Sunday: ?I am involved in a fight, a fight for my life right now, which is to stay out of jail and to continue to be able to function as a reporter. That has been an all-consuming fight.?
“Unlike many of my colleagues,” Miller said, she would not accept pernicious waivers of confidentiality. But she “can’t comment” on why she was subpoenaed.
Rainey was present at Berkeley when Miller said that the failure to find chemical, biological, or nuclear weapons materials in Iraq had become a fixation. ?Why hasn?t there been more reporting,? she asked, ?about the intelligence failures that led the U.S. and other governments to miscalculate Iraq?s weapons capabilities? It remains a dangerous world out there.? Where has she been for the past two years, one wonders?
By the end of the Berkeley visit, wrote Rainey, ?the strain of her double-profile showed? as she angrily denied his suggestion that she differed with her editors on the subject of WMD reporting failures. Host Bergman took Miller aside as she protested: ?I did not need this. I really did not need this.?
At the National Press Club on March 15, Miller had another combative exchange with Michael Kinsley, editorial page editor of the Los Angeles Times.
Kinsley opined that on occasion there are larger societal interests that the government should look after in a democracy, which may legitimately conflict with the reporters? ?amazing concession? of being allowed to offer ?unilateral immunity? to sources. (Matt Cooper pointedly interjected that more than a ?bartender?s privilege? was at stake in the Plame case.)
Miller made it clear that she considered herself to be a member of a privileged group that should not be required to testify when subpoenaed. ?In my world? of national security reporting, she said, interviewing confidential sources deserves special protection, regardless of the value of the information or motives of the source.
A different perspective emerged between the lines in Cooper?s remarks on the panel. It would be ?vanity? to go to jail when one?s source personally (and not by a ?Stalinist? written waiver) releases the reporter to testify. Libby was prepared to do for Miller what he had done when Cooper sought his personal assurance. Cooper later used the metaphor of ?hanging by the branch of principle, while the tree walks away.? But Miller continues to insist that all ?waivers? are not to be trusted.
At Berkeley, Bergman posed a rare tough question: Are the sources she may go to jail in order to protect actually whistle-blowers? Or is she protecting high-level officials who were trying to manipulate the media into a backlash against Plame?s husband, Ambassador Joe Wilson?
?We don?t know what their motivation was. People leak for all kinds of reasons,? replied Miller. ?You can wait for the ?perfect? whistle-blower case, [or] go with what you?ve got.? The government is trying to make sure that ?the only people we talk to are the authorized spokesmen cleared to speak to journalists. And if that is the kind of news that people want, that?s what they?re going to get.?
In the case of Time’s Matt Cooper, the First Amendment principle at stake is far clearer because he co-authored a Time Web piece about Plame?s identity, citing confidential sources in the executive branch. But Miller wrote nothing. And, as to motive, Cooper was clearly determined to ?out the outers? — that is, to expose a potential felonious act of revenge by high-level officials.
In regard to the other defendant, why does The New York Times tie its reputation to the peculiar circumstances of Miller?s case? At Berkeley she asserted that her publisher has and “will back me 100%, ” all the way to the Supreme Court.
Contrary to the notion, on occasion endorsed by this writer, that Times Publisher Arthur Sulzberger Jr. and Executive Editor Bill Keller had intended to promote a First Amendment showdown, I discovered a rather uniform view during a week of interviews with Washington journalists as to who drives whom. In their view, by refusing any kind of cooperation with prosecutor Fitzgerald and the grand jury at the district court level, Miller boldly forced the hand of her bosses into standing by her all the way through the appeals process.
The irony is that, rather than protecting her newspaper, she is imperiling it by rejecting out of hand the idea of some sort of negotiated compromise with the prosecutor. A veteran Times reporter critically reflected on her role in the Plame case: Around the water cooler of the Washington bureau, there is a strong feeling that ?for the second time in two years, she will have brought disgrace to The Times.?
Therefore, the question is — as it was after the WMD scandal of 2002-03 — what price Judith Miller to The New York Times?