The Miller charade

IN Media Practice | 06/10/2005

Dasu Krishnamoorty

Judith Miller of the New York Times has walked out of jail without completing her sentence and has appeared before a grand jury and begun testifying. The news is not so much her release as the manner in which she engineered it, with the least finesse. She went to jail refusing to disclose the identity of the source who the prosecutor thought gave her information that the court needed. Soon after she came out of jail, she told reporters she had agreed to testify because "my source has personally and voluntarily released me from my promise of confidentiality." The only and ready taker for this fib was her employer Arthur Sulzberger Jr. who said that "it was a direct and uncoerced waiver." So, the story is that she has agreed to testify following a specific and not generic waiver. 

This story does not stand even the feeblest of scrutiny. When she went to jail, The Hoot carried a report that her source had waived confidentiality in favor of all journalists, including Judith Miller. At the time of sentencing her, Judge Hogan himself told her that her source had freed her from confidentiality and that she was mistaken in thinking that she was defending freedom of the press. Therefore, there is no question that "Judy has been unwavering in her commitment to protect the confidentiality of her source," as Sulzberger trumpets. There is no occasion for protecting a source who has abdicated his right to confidentiality. 

If this does not sound very convincing, the Times executive editor Bill Keller steps in to explain that "till recently she received only a generic waiver and she believed she had ample reason to doubt that it had been freely given." The ample reason itself remains undisclosed. We must now believe that Miller had been waiting these 12 weeks for a voluntary, free and uncoerced waiver. But when the judge had said that she has been freed from confidentiality, why did she not tell him that she had doubts about the genuineness of the release? Keller says several important things had changed recently that convinced Miller that she was released from her obligation, but does not tell us what the changes were. 

The consistency with which Miller declined waivers from the beginning has strengthened doubts that she wanted some pretext to go to jail and become a martyr. In this game, the New York Times was steadfastly behind her, showing its support in excessive coverage. The Times wrote today (1 Oct. 2005) the eleventh editorial devoted to Judith Miller. Its identification with the reporter is so complete that in the tenth editorial the paper said, "If Judith Miller loses this fight, we all lose." The paper celebrated her release with a 3-col color picture on the front page and a 4-col black and white on the jump page, the whole of it taken up by the release story. 

The editorial throws light on why Judith Miller rejected a general waiver. "If Ms. Miller’s source had wanted to release her from her promise, he could have held a press conference and identified himself. And obviously, he could have picked up the phone." Amusing. A matter of protocol, perhaps. Yet, Miller came out of jail after she nearly coerced her source into making an ‘uncoerced’ waiver. Tired of her martyrdom, she decided to get out of the jail and set her lawyer after Libby’s lawyer to wrest a specific waiver from the source. The fresh personal waiver is not spontaneous but the outcome of Miller’s persistent initiative, bordering on the coercive. 

The editorial vaguely claims that, "Some journalists feel that when it comes to government employees, no waiver short of a public statement can be judged to be freely granted." According to a Times report by Katherine Seelye, all this rigmarole has failed to win any support in any quarter. "The inescapable conclusion that some could draw here is that after a certain period of time, when the reporter is fed up with being in prison, she will make a concession," said Jane Kirtley, a professor of media ethics and law. That, in fact, is what Miller did. 

Miller said in a statement soon after her release, "I went to jail to preserve the time-honored principle that a journalist must respect a promise not to reveal the identity of a confidential source. I chose to take the consequences - 85 days in prison - rather than violate that promise. The principle was more important to uphold than my personal freedom."  

Some people do not agree. Micky Kaus, writing for Slate.Com, is not taken in by this spin. He says, "That has to be disingenuous. You mean she was sitting in jail all because she never bothered to inquire and find out that the waiver that would free her was genuine?" Arianna Huffington of Huffigntonpost.com says, "So, it defies credulity for Miller, Sulzberger, and Bill Keller to keep insisting that Libby’s earlier waiver was coerced when Libby says that it wasn’t. I don’t have much good to say about the vice president’s chief of staff, but I don’t doubt that he knows the difference between being coerced and acting on his own free will. How deep is the Times’ contempt for its readers that they really think they’ll buy the "Oh, Judy finally has the right waiver" line?" 

The real reason for Judith Miller’s capitulation is the absence of any guarantee that she would be released on 28 October when the term of the grand jury would end. The court might insist on her doing all the 18 months of her sentence. More than that, the very aggressive special prosecutor Patrick Fitzgerald hinted that he might convene a new jury and bring fresh criminal contempt and obstruction of justice charges against her. The waiver Miller got last week was the same that Libby’s lawyer gave Miller’s lawyer a year ago, according to the Washington Post. The only thing that has changed is her fear of extended incarceration.  

The Philadelphia Inquirer was seven hours ahead of the New York Times in breaking the news of Miller’s release, making everyone wonder if in the flush of her release Miller had forgotten to inform her employer. But the Inquirer was also the first to disclose that the Miller’s source was Vice-President Dick Cheney’s chief of staff Lewis Libby. Would such a powerful official submit to coercion? Anyway, what made Miller doubt that the waiver was not free? All the other journalists, including Matt Cooper of Time magazine, testified before the jury on the strength of the generic waiver Libby offered a year ago.

Miller’s release has revived the plea for a shield law that will protect both the reporter and the source. "The important lesson from her travails is the need for a federal shield law that would resolve such issues in the future. Judith Miller’s rights would have been protected by state shield laws, including laws in New York and Washington D.C., which provide total protection," said the Times editorial. Forty-nine states and the District of Columbia provide reporters limited or full protection from testifying about confidential sources. It is time to extend such a shield to the federal courts. A bill has even been drafted and is gathering dust in Congress. If it becomes law, that would protect the free press while providing an exception in case of an immediate and demonstrable threat to national security.