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Legal Analysts Critical of N.Y. Times Reporter's Stance in Leak Probe

By Howard Kurtz
Washington Post Staff Writer
Wednesday, July 13, 2005

Tim Russert of NBC, Walter Pincus and Glenn Kessler of The Washington Post and Matthew Cooper of Time were all subpoenaed in the Valerie Plame leak investigation. But only New York Times reporter Judith Miller is in jail today.

Although many media advocates hail Miller's sacrifice for what she and the Times see as a bedrock journalistic principle of protecting a promise to a source, some legal analysts say her imprisonment stems from a confrontational legal strategy adopted by the Times.

Geoffrey Stone, a University of Chicago law professor, said journalists, like doctors and lawyers, are under no obligation to remain silent about a source who has waived confidentiality. "It's the source's privilege, not the reporter's," he said. "If the source doesn't want confidentiality, the reporter has no business insisting on it. . . . If it's a matter of conscience instead of a matter of law, you can do whatever you want. As a legal matter, it's absurd."

U.S. District Judge Thomas F. Hogan sent Miller to the Alexandria Detention Center last week after she refused to testify in the probe of whether Bush administration officials illegally disclosed that Plame was an undercover CIA operative. Plame's identity was revealed in a column by Robert D. Novak eight days after her husband, former ambassador Joseph C. Wilson IV, wrote an op-ed piece in the Times criticizing White House assertions about Iraq's nuclear program during the run-up to the U.S. invasion.

The White House directed high-level officials to sign general waivers releasing journalists from any pledge of confidentiality on the Plame matter, but Cooper said last week that such waivers "are not worth the paper they're written on" because they are inherently coercive. Cooper agreed to testify after announcing that his source had personally released him from his promise of anonymity. Miller has steadfastly refused to testify.

Earlier in the investigation, NBC and Post journalists who were subpoenaed worked out agreements with special prosecutor Patrick J. Fitzgerald to provide limited testimony in ways they said did not compromise their promises to sources. Novak and his attorney have refused to say whether he cooperated with the prosecutor.

Floyd Abrams, the veteran First Amendment lawyer who represents Miller, said the situation faced by the other reporters may have been different. But he added: "Their willingness to reach an accommodation with Mr. Fitzgerald may have been greater than Judy's.

"We pursued every angle on this case in terms of trying to avoid the current situation, while still preserving Judy's honor and her compliance with her promises to sources," he said.

Times Executive Editor Bill Keller said Miller is doing a "brave and honorable" thing. "The simple fact is that Judy made a promise to a source that she would protect his anonymity. That source has not granted her any kind of a waiver from that promise, at least one that she finds persuasive or believes was freely given, and she feels bound by that pledge. And more than that, she feels that, if she breaks that pledge, she will compromise her ability to do her job in the future."

Post reporters who answered prosecutors' questions also declined to rely on the paper waivers.

Some analysts hailed the Times's stance, contrasting it with Time Inc. Editor in Chief Norman Pearlstine's decision to surrender Cooper's notes and e-mails after the Supreme Court refused to hear the magazine's appeal.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said "the Times's legal strategy was to back up their reporter. This was Judy, and she said right up front, 'I'm not cooperating, period.' " She said Times Publisher Arthur Sulzberger Jr. "is willing to stand on this principle, and I don't think there's any way he would have tried to talk her into compromising."

Stone and other legal experts say they assume that Novak has testified under some sort of waiver or compromise. Miller, by contrast, never wrote a story about the Plame matter.

Miller was not protecting a classic whistle-blower bent on exposing wrongdoing, Stone said, but rather officials who were seeking to discredit Wilson. "In this context, you're talking about people who were violating the law and manipulating the press," he said.

Jonathan Turley, a George Washington University law professor, said that "with all the reporters who found ways around this, there was the impression that the New York Times was spoiling for a fight." But he added that there is no way to know for sure.

Turley said he found it "strange" that Miller and her attorney have said nothing about seeking a personal waiver from her source or sources. "That seemed to me a step they could have taken," he said.

Abrams declined to address that point. "I can't go into whether she sought it, but I can tell you she doesn't have it," he said.

"Judy and Matt both felt very strongly that the waivers referred to in court by Judge Hogan -- preprinted forms from the Department of Justice that people were instructed to sign by their superiors -- do not constitute the sort of waivers a journalist ought to accept as truly freeing the journalist from the obligation of confidentiality," Abrams said. "Both of them believed this was simply a form of coercion."

Abrams represented Time and Cooper before they hired separate lawyers.

In an internal Time e-mail, obtained by Newsweek magazine, Cooper reported to an editor that senior White House aide Karl Rove had told him "on double super secret background" that it was "Wilson's wife, who apparently works at the agency on wmd [weapons of mass destruction] issues who authorized the trip" that the former diplomat took to Niger. Wilson investigated whether Iraqi president Saddam Hussein was trying to obtain uranium from that country. Rove and his attorney have denied that Rove disclosed Plame's identity to reporters.

Cooper provided limited testimony last year after receiving a personal waiver from I. Lewis Libby, Vice President Cheney's chief of staff. Russert, Pincus and Kessler also provided limited depositions with the consent of their sources.

Abrams, who represented the Times in 1978 when reporter Myron Farber was jailed for 40 days in the case of a doctor accused of killing patients, also takes a dim view of waivers from sources. In that case, he recalled, Farber refused to identify his sources even after some of the sources acknowledged their role in court.

Miller could be jailed for four months, the time remaining in the current grand jury's term. During last week's hearing, however, Fitzgerald described her as "breaking the law" and having committed a "crime." He could take the unusual step of trying to convert her civil contempt to a charge of criminal contempt, which, if she were convicted, would carry a longer jail term.

"That would overstep the legitimate bounds of simply trying to get Judy Miller to testify as to what her sources told her," Abrams said. "It would constitute a sort of punitive overreach."

© 2005 The Washington Post Company