LAST SUMMER, New York Times reporter Judith Miller went to jail rather than reveal to Special Prosecutor Patrick Fitzgerald the identity of the source who told her that Valerie Plame was an employee of the CIA. Or so she said. But there was always some doubt as to what motivated Miller. It has been widely reported that her source was Lewis "Scooter" Libby, Vice President Cheney's chief of staff. Libby himself has testified before Fitzgerald's grand jury that he met with Miller on July 8, 2003, and discussed Ms. Plame. Further, more than a year ago, both Libby and his lawyer, Joe Tate, signed a document that specifically waived any privilege that might belong to Libby as a source. And Libby has urged any reporters that he spoke to about Ms. Plame to testify, on the ground that their testimony would help to exculpate him. So many observers have wondered whether Miller had a motive for defying the special prosecutor's subpoena other than "protecting" Libby.
Last week, Miller and her new lawyer, Bob Bennett, announced that she had had a change of heart and was now willing to testify before Fitzgerald's grand jury and name her source for the Plame "leak." Miller and Bennett attributed the change to the fact that Libby had contacted Miller and, once again, urged her to testify about their conversation. They suggested that Libby was somehow at fault for not contacting Miller in prison to repeat his waiver of any possible confidentiality. Bennett, for example, said on CNN:
It was really the responsibility of Mr. Libby to come forward. Judy Miller felt very strongly that she should not initiate things. . . .
We did not want to take any steps to make it look like it was coercion. Judy Miller did not want me to, or anyone else for that matter, to suggest that he should do anything. We had reason to believe that he was prepared, he had made those representations, to some third parties. And so that's what happened. Mr. Libby knew where Judy was. He had her phone number. They knew each other. There was no secret where she was. So I find it amazing that somebody would suggest that Judy would unnecessarily spend 85 days in jail.
The suggestion that Libby was somehow at fault for not contacting Miller in prison and reiterating that he really meant it when, more than a year ago, he said that she should testify, seems laughable on its face. It was roundly rejected by Libby himself, who wrote to Miller on September 15:
I was surprised at Mr. Bennett's request, because my counsel had reassured yours well over a year ago that I had voluntarily waived the confidentiality of discussions, if any, we may have had relating to the Wilson-Plame matter. As you know, in January 2004 I waived the privilege for purposes of allowing certain reporters identified by the Special Counsel to testify before the Grand Jury about any discussions I may have had related to the Wilson-Plame matter. The Special Counsel identified every reporter with whom I had spoken about anything in July 2003, including you. My counsel then called counsel for each of the reporters, including yours, and confirmed that my waiver was voluntary. Your counsel reassured us that he understood this, that your stand was one of principle or otherwise unrelated to us, and that there was nothing more we could do. In all the months since, we have never heard otherwise from anyone on your legal team, until your new counsel's request just a few days ago.
To say that Libby's position is credible understates the matter. No one would be so foolish as to spend three months in prison, waiting for someone who has already urged her to testify to contact her again, unbidden, and ask her to testify again. Moreover, Miller has said that the reason she did not accept Libby's original waiver was that she did not believe it could be freely given, since White House employees are required to give such waivers, or else be fired. But that is still true, and Libby still works for the White House. If he couldn't voluntarily waive confidentiality a year ago, he couldn't do it last week, either. Yet, suddenly, Miller saw her way clear to getting out of jail.
WHAT WAS REALLY GOING ON? It is widely believed that Miller went to prison in part to restore her credibility on the left, which was damaged by her Iraq war reporting. It also goes without saying that, after three months, she was tired of prison and wanted to go home. Perhaps there was no more to it than that: Maybe Miller was ready to go home, had her lawyer contact Tate to ask for a letter reiterating Libby's waiver, and then used Libby's letter to justify her change of heart. That could well be the case. One basic fact, however, suggests that there is more going on than Miller's understandable desire to terminate her martyrdom. After Miller's counsel, Bob Bennett, received Libby's letter of September 15, she stayed in prison for more than ten additional days while Bennett negotiated with the special counsel. And when they announced her decision to testify, it was clear that two separate agreements had been reached. The Washington Post reported:
After she received this "personal, voluntary waiver," Miller said, her lawyer approached the special prosecutor in the leak investigation and received an assurance that her testimony would be narrowly limited to her communications with the source. She did not mention the source's name in her brief appearance on the courthouse steps, but he has been identified previously as I. Lewis "Scooter" Libby . . .
And Miller's own statement upon her release from prison included this intriguing passage:
My attorneys have also reached agreement with the Office of Special Counsel regarding the nature and scope of my testimony, which satisfies my obligation as a reporter to keep faith with my sources.
This enables me to appear before the Grand Jury tomorrow.
So something other than "protecting" Scooter Libby was indisputably involved. And, if Libby's reiteration of the waiver that he gave Miller a year ago was just a fig leaf, then the real issue--the real reason why Miller spent three months in prison--must relate to the agreement her lawyer reached with Fitzgerald to limit her testimony. The question, then, is: In what way did the prosecutor agree to limit his questioning of Miller, and why?
THERE ARE TWO OBVIOUS POSSIBILITIES. The first is that Miller had multiple sources for the Plame "leak." Plame was a desk employee of the CIA in Virginia, and was not "covert" in the usual sense. It has been reported that Plame's employment was widely known among her friends and associates in Washington. So Miller and other reporters may have heard that she worked for the CIA not just from an administration source like Scooter Libby or Karl Rove, but from an acquaintance of Plame's, from another reporter, or even, as some have speculated, from her husband, Joe Wilson. If such information about Plame was widely circulating in the summer of 2003, the fact would seem highly relevant to any claim that an administration official committed a crime by "leaking" information that was already well known. One would hope that the prosecutor would not agree to limit Miller's testimony in this way; if he did, it would seem to be an ominous sign for Libby.
A second possibility seems more likely: Surprisingly, most people are unaware that Miller is involved in a controversy over a leak that is far more serious than the relatively trivial Plame matter. Shortly after the terrorist attacks of September 11, 2001, Miller learned from a leaker in the federal government that the FBI intended to raid the offices of an Islamic "charity" that was suspected of being a terrorist front. According to a court decision in February 2005, which can be accessed here, Miller responded by telephoning the charity and asking for comment:
On December 3, 2001, consistent with The Times' policy of seeking comment from the subjects of its articles, Miller telephoned HLF and spoke with HLF representatives about the information that had been disclosed to her by one or more confidential sources. According to Miller, she sought comment from HLF at this time only "about the government's intent to block HLF's assets," and she did not intend to tip-off HLF about the impending FBI search of HLF's offices. (Id. 10-11.) Patrick J. Fitzgerald, U.S. Attorney for the Northern District of Illinois ("Fitzgerald"), representing the government, has stated that on the night of December 3, 2001, Miller disclosed to HLF personnel that "government action was imminent" (Affirmation of Patrick J. Fitzgerald, dated Nov. 19, 2004 ("Fitzgerald Aff."), at 3), and that the HLF personnel were surprised by the information conveyed by Miller. . . .
On December 4, 2001, FBI agents searched HLF's offices. According to Fitzgerald, the disclosure by Miller to HLF on December 3 had the effect of creating increased safety risks to the FBI agents conducting the search and of increasing the likelihood of destruction or concealment of evidence or assets.
If the facts are as alleged by the prosecutor, Miller may have committed a crime by communicating information to the Islamic group that could have tipped them off to an impending raid. Note, too, that the prosecutor who has been pursuing this matter is none other than Patrick Fitzgerald, the special prosecutor in the Plame matter.
IT IS HARD TO SEE WHY Miller would go to jail rather than identify Scooter Libby as one of her sources for the Plame report, given that Libby and his lawyer waived any privilege in writing; that the privilege belongs to the source, not the reporter; and that Libby himself testified freely about his conversation with Miller, and urged her to do the same. On the other hand, it is entirely plausible that Miller was willing to go to considerable lengths to protect not only her source, but also herself, in a situation where she not only received information about an imminent FBI raid, but allegedly passed the information on to the organization that was under investigation.
Given what we know now, the most plausible explanation of Miller's conduct is that she went to jail because she feared that if she agreed to testify before Fitzgerald's grand jury, she could be asked about the FBI leak, and she wanted to protect both her source and herself. In that case, perhaps what really got her out of prison was the agreement that her lawyer made with the prosecutor to limit questioning before the grand jury to the Plame matter. This would have the effect of barring any inquiry into the more significant FBI leak. Why would Fitzgerald agree to forgo any questioning about the FBI leak, which until recently he pursued aggressively? Based on publicly available information, there is no way to know. Maybe Fitzgerald is so concerned with securing an indictment of an administration official that he is willing to sacrifice the FBI investigation in order to achieve that goal. Another possibility--one hopes, a more likely one--is that Fitzgerald has agreed not to ask for the name of the source of the FBI leak because Miller, through her lawyer, has already given it to him, perhaps in exchange for an assurance that she will not be criminally prosecuted.
This is speculation, of course. What is not speculation, however, is that Miller and Bennett have cynically wronged Scooter Libby by pretending that he is somehow to blame for Miller's 87-day stay in a federal prison.
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