Miller's Handing Over Notes was Her Major Misstep

By: Allan Wolper Our notes are our most precious possessions. We scribble our perceptions about the people we interview on dinner napkins, on the edges of articles we've used for background, on the backs of cards, in lined reporters notebooks. Our notes are our proof that we spoke to the people we quoted. They can often save us from disaster in libel suits. They contain the names of our sources and sometimes their motives for speaking to us.

When we have time, we transcribe our notes so our editors, if necessary, would not have to decipher our handwriting or our cryptic computer markings. We know it would be tragic if someone who didn't know us -- a prosecutor, for example -- were able to sift through our raw notes and put their own spin on what they mean.

We know that prosecutors want to use our notes to collect clues to our thought process. Giving them our notes would be handing them a road map to our sources. It matters little what we redact and what we leave in, especially when a grand jury can ask reporters questions about the notes.

"Notes are the blueprint of the newsgathering process," said Jane Kirtley, The Silha Professor of Media Ethics and Law at the University of Minnesota and former executive director of the Reporter's Committee for Freedom of the Press. "They are first drafts of a story. They are even more sensitive than telephone records. They should always be protected from government scrutiny. They are sacrosanct."

That's why Judith Miller's decision, supported by The New York Times, to hand over two sets of notes -- even those she redacted -- to Special Prosecutor Patrick J. Fitzgerald and the grand jury investigating the CIA Leak case was so wrong.

That's why it was so infuriating to read the matter-of-fact tone New York Times Executive Editor Bill Keller used in his Oct. 11 "Judy Miller Update" e-mail to his newsroom. "Judy met this afternoon with the special counsel to hand over additional notes and answer questions," Keller wrote. "She is to return to the Grand Jury ... to supplement her testimony."

It was the kind of e-mail Keller might have sent to announce Miller's appearance at Columbia University to participate in an ethics panel on anonymous sources. The Times used to handle the pursuit of reporter's notes with more stealth.

In 1969 when Earl Caldwell, one of the paper's reporters, had his notes subpoenaed in a high-profile Black Panther drug case, he was told to hand over his notes to the newspaper's executives. "We did that to protect Earl from the prosecutor," said James Goodale, the Times' former general counsel.

Four years later, Watergate prosecutors demanded the notes of reporters for The Washington Post and the Times, and Goodale told those newspapers to give them to their publishers. "They weren't going to put [Washington Post publisher] Kay Graham and [New York Times publisher] Arthur Ochs Sulzberger in jail," Goodale laughed. The subpoena was soon dropped.

So it's ironic that Miller was jailed for 85 days after prosecutors and federal judges cited the 1972 Branzburg vs. Hayes Supreme Court decision that originated with the Black Panther case. The court ruled that reporters who witnessed a crime must testify before a grand jury. She was released from jail after agreeing to testify, claiming that her source, I. Lewis "Scooter" Libby -- whom the White House coerced into waiving a confidentiality agreement a year ago -- was no longer being coerced.

The public has no real notion about why reporters use confidential sources. And now whistleblowers might see the Miller-Times surrender as a sign that reporters are untrustworthy. Especially when their notes wind up in a prosecutor's office.

Vernon Loeb, California investigations editor for the Los Angeles Times, is so concerned about how prosecutors use reporters' notes that he believes writers should discard them even if they're needed in a libel suit. "Our most important obligation is our confidential sources," said Loeb, noting that whistleblowers are "heroic figures."

Kelli Sager, an attorney for Davis Wright Tremaine LLP, which represents the Los Angeles Times and The Press-Enterprise in Riverside, Calif., said reporters use notes the same way that a lawyer does: "Notes reveal a lawyer's thought process. If getting information is more important than the process, then our society wouldn't have attorney-client privileges."

Lyndon Johnson was once advised to pull his troops out of Vietnam and declare victory. He didn't, and we lost. Now Miller and the Times have declared a press victory by surrendering some notes to a prosecutor. And we lost this one, too.