Ethics Corner: Will Judith Miller Go Directly to Jail?

By: Allan Wolper Will Judith Miller of The New York Times stonewall a Washington, D.C., grand jury searching for sources who leaked the name of a CIA operative to several reporters? From two brief conversations I had with her, it seems Miller is ready to do jail time rather than obey a recent court order demanding she identify a source who might be, or know, The Leaker.

"I can't tell you what I am going to do yet," she said in a upbeat voice during our first cell phone interview. "But you should read what my publisher thought about the subpoena."

Her publisher, Arthur Sulzberger, Jr., has said journalists should not be subpoenaed to identify their confidential sources or have to worry about being imprisoned for doing their job. "Such subpoenas make it less likely that sources will be willing to talk candidly with reporters, and ultimately, it is the public that suffers," Sulzberger said.

Standing up to Special Prosecutor Patrick J. Fitzgerald and the White House could help Miller rehabilitate her reputation. Miller and the Times are still being vilified for anonymously sourced stories alleging that Saddam Hussein had weapons of mass destruction and was shopping for more of them. Until that time, Miller was seen as one of the paper's most celebrated foreign correspondents ? a no-nonsense journalist who won a Pulitzer in 2002 for her profiles of the global terrorism network.

Once again this could be Miller's time. It is a perfect case for her and her newspaper to fight. There is only one way a reporter can ethically identify a confidential source: if that source decides on his own to go public and says it is OK to do so.

In the CIA leak case, the Bush White House has ordered its officials to undergo grand jury questioning to identify The Leaker. But Miller and the Times doubt there are any Bush administration sources who have not been forced to break their confidentiality agreements. (It is a felony to leak the name of a CIA operative, but there are no laws preventing reporters from publishing the information.)

That's why it seems unlikely Miller would talk, even if her sources with knowledge of the CIA case call and inform her that she can. That means ignoring the court order and refusing to give a sworn deposition in the office of Floyd Abrams, the First Amendment attorney representing her and the Times.

That kind of behavior would be judged against the decision by Tim Russert of NBC, Matthew Cooper of Time magazine, and Glenn Kessler of The Washington Post to provide sworn depositions in their lawyers' offices. The three journalists gave depositions about conversations that each had with I. Lewis Libby, the chief of staff to Vice President Dick Cheney. Libby, who has been suggested frequently as The Leaker, signed a waiver to their confidentiality agreements.

Walter Pincus of the Washington Post gave an oral deposition after an unnamed administration source told the special prosecutor he could do so. But none of those reporters have answered questions about what they said in their depositions. So their readers and viewers will have to trust them when they say they hadn't talked to anyone but Libby. "There is no secrecy involved," said James Rehnquist, a former justice department official. "A witness can say anything they want, to anyone they want to."

And as Cooper recently found out when he was recalled to testify before the grand jury, any one of those reporters can be subpoenaed again.

One reason the Times doesn't want Miller to give one of those depositions: It would open her up to speculation that she was once again carrying water for the Bush administration.

Abrams has sought to quash the Miller subpoena by arguing in federal court briefs that there is no reason to subpoena her because there are other journalists the grand jury should question first. That was a reference to Robert Novak, who identified the CIA agent on July 14, 2003 in his syndicated column as Valerie Plame, wife of Joseph C. Wilson, IV, the former diplomat.

Thus far Novak is not saying whether he has testified or whether he has been subpoenaed. James Hamilton, his lawyer, told me he doesn't plan to.

What will Miller finally decide to do? "What I know of Judith Miller, there is no way in hell that she will be willing to testify," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

When I read that quote to Miller in our second interview, she laughed and said: "I think that's right, and it's what my lawyer would say, too."