Where are the Weapons of Mass 1st Amendment Destruction?

An explosion of indictment rumors has been coruscating through blogland and the MSM in the past couple of days.  One pair of sparks was the publication in last Sunday’s New York Times of both Judy Miller’s statement about her grand jury testimony as well as (finally) coverage of her situation in depth by a team of NYT professionals (Van Natta, Liptak and Levy).  (There is excellent rumor-parsing, news aggregation, and commentary in Dan Froomkin’s Washington Post column,  the bunch at Needlenose, those at firedoglake, and Laura Rozen at Warandpiece.)

The Times’ front page effort carries, unobtrusively, a nevertheless bright thread of scepticism, including the last subhead, "A Puzzling Outcome".  Along the way, it implies that editorial management was fragmentary and lax, and even after the jailing, unable to come to grips with the intricate plotting via multiple agendas in the case.  It does not paint a complimentary picture of Ms. Miller, but one has to say it is far easier on her than a number of other commentaries by fellow journalists that have emerged.  (Just scan through the recent entries at Romenesko.)

Those of us who were disgusted by the sychophantic reporting of US correspondents from the Iraqi front during the invasion phase of the war have good reason to recall Judith Miller’s work from that period, not least since it appeared in lead positions in the blessed Newspaper Of Record.  In the US, war reporting has been carried out with neither fear nor favor since WW2 and certainly so during the Vietnam War.  George Clooney has apparently constructed a large extended middle finger aimed at the news media in his just-released Murrow film, for example, celebrating Murrow’s courage in calling out Joseph McCarthy on the air.


Judy, on the other hand, has functioned as a virtual mouthpiece for the Bushrovers, especially in justifying the Iraqi invasion based on supposed WMDs in Hussein’s possession.  Eventually, in May 2004, the Times published some retrospective criticism.

Some critics of our coverage during that time have focused blame on individual reporters. Our examination, however, indicates that the problem was more complicated. Editors at several levels who should have been challenging reporters and pressing for more skepticism were perhaps too intent on rushing scoops into the paper. Accounts of Iraqi defectors were not always weighed against their strong desire to have Saddam Hussein ousted. Articles based on dire claims about Iraq tended to get prominent display, while follow-up articles that called the original ones into question were sometimes buried. In some cases, there was no follow-up at all.

The mea culpa cites a number of "problematic" articles, without citing authors, but as Sunday’s professional Times coverage summarizes,

The note said the paper’s articles on unconventional weapons were credulous. It did not name any reporters and said the failures were institutional. Five of the six articles called into question were written or co-written by Ms. Miller.

One has to feel for the embittered pros on 43rd Street.  Reporters are famous for protecting their turf, but Judy is infamous for it.  The story about her supposed Secret clearance, claimed by her to other reporters on the battlefield as grounds for excluding them from her particular place in the WMD search, is either an indication that she will lie for exclusive control of her sources, or will utterly compromise her journalistic objectivity for them.  Yet after all that specious coverage of the run up to the war, and after virtually gagging her colleagues for months on a story that potentially is leading to a governmental traffic accident of Watergate proportions, once waivered by viva voce she still won’t break a crust with them:

In two interviews, Ms. Miller generally would not discuss her interactions with editors, elaborate on the written account of her grand jury testimony or allow reporters to review her notes.

And three of the last four grafs of their piece must have been particularly ironic to write:

On Tuesday, Ms. Miller is to receive a First Amendment award from the Society of Professional Journalists. She said she thought she would write a book about her experiences in the leak case, although she added that she did not yet have a book deal. She also plans on taking some time off but says she hopes to return to the newsroom.

She said she hopes to cover "the same thing I’ve always covered – threats to our country."

The Times incurred millions of dollars in legal fees in Ms. Miller’s case. It limited its own ability to cover aspects of one of the biggest scandals of the day. Even as the paper asked for the public’s support, it was unable to answer its questions.

The First Amendment award from the professional society, the book deal, the millions in legal fees, the damage to other reporters’ work and the paper’s image with its readership—and, hopefully, a return to covering "threats to our country"—its a wonderful bloody life in journalism. 

I expect to see some high-level damage at the Times in the near future, including (one can only hope for the sake of the other reporters who have sweated and occassionally lost blood for their work) the departure of Ms. Miller herself—despite her attempt last Sunday to out-parse the parsers.

From her account, she seems lost in a parallel journalistic universe in which protecting her special governmental access is the only public good she can serve.  So sensitive is she to the rights of endangered "sources" that she must wait patiently by the phone until these sources call her direct, and she can monitor by the tone of their voice for a desired absence of coercion, before spilling the beans.  Despite signed waivers that permitted other reporters to cooperate with the grand jury, Judy claims to be receiving contradictory signals on some sideband no one else can pick up:

At the behest of President Bush and Mr. Fitzgerald, Mr. Libby had signed a blanket form waiver, which his lawyer signaled to my counsel was not really voluntary, even though Mr. Libby’s lawyer also said it had enabled other reporters to cooperate with the grand jury.  [from Miller’s "personal account"]

Ms. Miller authorized Mr. Abrams to talk to Mr. Libby’s lawyer, Joseph A. Tate. The question was whether Mr. Libby really wanted her to testify. Mr. Abrams passed the details of his conversation with Mr. Tate along to Ms. Miller and to Times executives and lawyers, people involved in the internal discussion said.

People present at the meetings said that what they heard about the preliminary negotiations was troubling.

Mr. Abrams told Ms. Miller and the group that Mr. Tate had said she was free to testify. Mr. Abrams said Mr. Tate also passed along some information about Mr. Libby’s grand jury testimony: that he had not told Ms. Miller the name or undercover status of Mr. Wilson’s wife.

That raised a potential conflict for Ms. Miller. Did the references in her notes to "Valerie Flame" and "Victoria Wilson" suggest that she would have to contradict Mr. Libby’s account of their conversations? Ms. Miller said in an interview that she concluded that Mr. Tate was sending her a message that Mr. Libby did not want her to testify.  [from Sunday’s Times Van Natta, Liptak and Levy piece]

Mr. Tate was "sending a message", or "signaling" the opposite of what he was saying.  When, rather than risk the extension of her heroism to another grand jury term, Miller authorized one of her attorneys (Bill Bennett) to contact Libby’s lawyer on August 31, Tate told him

Mr. Libby had given permission to Ms. Miller to testify a year earlier. "I called Tate and this guy could not have been clearer – ‘Bob, my client has given a waiver,’ " Mr. Bennett said.  [again, from Van Natta, Liptak and Levy]

I guess it wasn’t clear enough when it was clear the first time.  Alternatively, even if (as it appears from Murray Waas’ article) the issue of permissive versus tampering communication from Libby’s lawyer to Miller’s lawyer is a potential grand jury issue, it is hard to understand why a journalist with a waiver wouldn’t write the story.  After all, we are talking about a source who is blatantly trying to control news spin, after the fact of a collosal failure of policy and of governmental intelligence (of several varieties), not some whistle-blower on the low end of the GSA scale.  Judge Hogan, who sent Miller to jail, said "She has the keys to release herself.  She has a waiver she chooses not to recognize."

And there turns out to be no difficulty at all in navigating the supposed conflict between Tate’s supposed representation of Libby’s testimony that he told Miller neither Plame’s name nor anything about her undercover status, and the fact that Miller found variants of Plame’s name in her notes.  In summarizing (we assume accurately) her testimony in last Sunday’s piece, Miller says

My notes indicate that well before Mr. Wilson published his critique, Mr. Libby told me that Mr. Wilson’s wife may have worked on unconventional weapons at the C.I.A.

My notes do not show that Mr. Libby identified Mr. Wilson’s wife by name. Nor do they show that he described Valerie Wilson as a covert agent or "operative," as the conservative columnist Robert D. Novak first described her in a syndicated column published on July 14, 2003.

These points are important, because it is illegal to expose the identity of a covert agent.  But by Miller’s account, Scooter didn’t do it, so what’s the problem?

What is ironic, and may become more so as we learn the extent, if any, of Fitzgerald’s Agnew_halfsize indictments and the actual charges, is that all this havering about what Libby meant or didn’t mean to convey, which is necessary to protect her sacred news source and the First Amendment, has potentially contributed to what current speculation defines as Libby’s greatest technical exposure: witness tampering.  Laura Rozen quotes Murry Waas:

Evidence indicating that Libby or his attorney may have tried to discourage or influence Miller’s testimony is significant for two reasons, outside legal experts say. First, attempting to influence a witness’s testimony might in and of itself constitute obstruction of justice or witness-tampering, said the experts.

So let’s review the position.  Judy prefers not to testify about her conversations with a senior public official.  The only way to avoid this is to ignore the de jure waiver she has from him, and pretend that representations made by his lawyer constitute a form of message from him requesting that she not testify.  But in explaining these implicit "messages" that drove her to source-protective silence, Judy damages her source in another way, by reinforcing a suspicion that Libby was trying to tamper her testimony as a grand jury witness.  Finally, why does she care?  Perhaps Libby has answered this in his own poetical way, to quote from his September 15 letter to his reporter friend:  "Out west, where you vacation, the aspens will already be turning.  They turn in clusters, because their roots connect them."

But these apparently directive "messages" are of course different from the kinds of information Libby was supplying during the meetings in question.  Journalism-tampering is not a crime, at least (so far) not at the Times.

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