When New York Times reporter Judith Miller went to jail in July in the CIA leak case, the Times editorialized about her brave sacrifice: "She is surrendering her liberty in defense of a greater liberty, granted to a free press by the founding fathers so journalists can work on behalf of the public without fear of regulation or retaliation from any branch of government." But a funny thing happened on the way to this stirring vindication of freedom Miller got tired of being in jail.
The special-prosecutor investigation into the leak of the identity of CIA employee Valerie Plame wife of President Bush critic Joe Wilson might yet be the undoing of high Bush officials. But it should already have been the undoing of the media's high self-regard. A cause that had been hyped relentlessly as synonymous with freedom and good journalism Miller and Time magazine reporter Matt Cooper protecting their sources has collapsed into farce.
When Miller was subpoenaed in August 2004, her lawyer, Floyd Abrams, immediately called Joseph Tate, the lawyer for her source, Vice President Dick Cheney's chief of staff, Scooter Libby. Tate told him that Libby was serious about the waiver he had signed releasing reporters from their pledges of confidentiality. Abrams wasn't so sure. This could have been cleared up if Miller had called Libby and asked. She didn't, because she thought that would have been pressuring Libby to allow her to testify. She wanted to be extremely cautious, what with the fate of the free press hanging on her every move.
She instead waited for Libby to call, as her appeals ran out and she ended up going to jail. He didn't. "I interpreted the silence as 'Don't testify,'" Miller has explained. But Libby's silence could have instead meant, "I have already signed a waiver and my lawyer told your lawyer you can testify what else do you want?"
In jail, Miller had a conversion. The First Amendment, or at least her courageous role in preserving it, wasn't so important after all. With the possibility of spending real time in jail looming if she continued to refuse to testify, Miller decided to contact Libby. Ten weeks in jail to protect all that we hold dear as a country was one thing, but 10 months or more was something else.
She had her new lawyer, Bob Bennett, contact Tate again. Libby's lawyer was very clear that Miller could testify, that, in fact, he had said as much a year earlier. So Miller's jail time was pointless. She could have testified all along. Even the minuscule principle she had stood on a reporter shouldn't ask a source whether she can be released from her pledge of confidentiality was violated when she tired of sleeping on the thin mattresses at the Alexandria Detention Center.
Miller's case mirrors that of Time magazine reporter Matt Cooper, who refused to accept as legitimate a blanket waiver signed by Karl Rove, until he was on the verge of going to jail. It is understandable that reporters don't want to be behind bars. But please spare us all the sanctimony about the hallowedness of confidential sources. After their grand-jury testimony, Miller and Cooper went on to write 3,000- and 2,000-word articles, respectively, detailing their confidential conversations that they supposedly testified about only under duress. Did Patrick Fitzgerald make them write these pieces as well?
Now Miller is being savaged by Times editors and writers not only for her shoddy past work, but for the fact that the source she was protecting was an aide to that icky Vice President Cheney. Times editor Bill Keller said, "I wish it had been a clear-cut whistle-blower case." Translation: If only our reporter's source had been somebody attacking the Bush administration, instead of somebody defending it. Those dozen or more editorials defending her as a heroine? Never mind.
No wonder the book Matt Cooper reportedly wants to write about this imbroglio is a comedy.