Judith Miller Case

New York Times reporter refused to reveal confidential sources

New York Times reporter Judith Miller appeared before a federal grand jury today to testify on the leak of a CIA agent's identity after spending nearly three months in jail for refusing to cooperate with the investigation.

Read the story: N.Y. Times Reporter Testifies in CIA Leak Case (Post, Sept. 30)

Lucy Dalglish , executive director of the Reporters Committee for Freedom of the Press, was online Friday, Sept. 30, at 2 p.m. ET to discuss the the case.

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Lucy Dalglish: Good afternoon, everyone. This has certainly been a bittersweet day for journalists. We are very pleased that Judy Miller's ordeal appears to be at an end, and that Judy has been able to protect her confidential sources.

I am happy to take your questions about the Miller/Plame case.

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Seminole, Fla.: It seems quite clear to me that both Mr. Libby's lawyer and the presiding judge thought that Ms. Miller had been given permission to testify. So why did Ms. Miller choose not to testify and to go to jail? I hope that Ms. Miller was not "grandstanding", and I especially hope that a book deal will not be forthcoming.

Lucy Dalglish: I can assure you that Judy was not "grandstanding." I visited her in jail, and it was obvious she was under great stress. Judy believes very strongly in the principle that journalists must protect their confidential sources. She also believes strongly (as do we at the Reporters Committee) that blanket waivers by their very nature are coercive.

It has been very clear to me throughout this entire unfortunate episode that Judy would only agree to testify if she received a personal, unequivocal waiver from her source or sources. I'm sure she also only agreed to testify if Mr. Fitzgerald promised he would not ask about any other sources or information.

As for a book, if she writes one, I plan to buy it.

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Washington, D.C.: Can someone please clarify: is Robert Novak -- apparently -- walking away unscathed? After all, he's the one who published the name for all the world to see. Thanks.

Lucy Dalglish: Federal grand juries are strange and interesting creatures. I have had several theories over the last year. My latest "educated guess" is that Mr. Novak testified and identified his sources. I believe he knew this would cause great consternation among his colleagues, and that's why he's refusing to tell us what happened. It's very likely that whatever information Novak may have provided did not give the prosecutor reason to believe a crime had been a committed. So Prosecutor Fitzgerald, in all likelihood, has been persuing a perjury and obstruction of justice investigation.

What happens to Novak? Probably nothing.

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Irvine, Calif.: 1. What did Ms. Miller say in court today?

2. Why did Mr. Libby not save her from the jail trouble by saying I had done it?

Lucy Dalglish: I don't know what she said in court, although the New York Times issued a statment from Judy moments ago, which is probably on their website.

As for Mr. Libby, that's a great question. Nothing in the law prevents someone who has testified before a grand jury from publicly revealing what he or she said.

My guess is that this is just a continuation of a White House plan to try to put the responsibility for what happened to Ms. Plame completely on the media. I don't think the public is that naive.

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washingtonpost.com: Judy Miller's Statement (The New York Times, Sept. 30)

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Wilmington, Del.: Why has no one mentioned the deja vu aspects of Miller's release -- namely, she and Cooper (who nearly went to jail) both were protecting someone who then said, "oh, was it me they thought they were protecting? Because I thought they knew a year ago they could discuss this". Is this just coincidence, is it an indication of wide confusion on the part of protecting sources, or is it the standard default excuse people give?

Lucy Dalglish: One of the more disturbing aspects of the reporters privilege cases that have surfaced in the last couple of years is the insidious growth of "confidentiality waivers."

Here's how they work: A government employee has valuable information about government malfeasance. Fearing repercussions within her agency, the employee seeks out a reporter in the hopes that once the public knows what's going on the illegal or reprehensible behavior might end.

Once in the spotlight, the government agency starts hunting for the "leaker."

An investigation is launched and someone int hye agency's office of the general counsel prepares "waivers" for all employees to sign. The waivers say that you hereby release any reporter who ever made a promise of confidentiality to you from the promise.

As a government employee, you probably have a choice: sign the waiver or lose your job. The agency (or prosecutor) then goes to the reporter and says, "You no longer have an obligation to your source. Talk to us or go to jail."

These waivers are by their very nature coercive. Journalists are wise to ignore them.

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Reston, Va.: Do you know if Libby made a different statement privatly to Miller about his desire to have her testify than the public statments made by his laywer?

Lucy Dalglish: No, I don't know.

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Washington, D.C.: As a reporter, I guarantee that if I were about to go to jail to protect a source, I would definitely let that source know it! Do you buy Libby's contention that he didn't know he was the source Judith Miller was going to jail to protect? Or do you think he had a change of heart (or arm twisting) during the time she's been in jail? If not, why on earth didn't Judith Miller go to him privately to confirm/deny the blanket waiver before she went to jail?

Lucy Dalglish: All very good questions.

I don't buy Libby's claim that he didn't realize he was (at least one) of the source's she was protecting.

As far as Judy not contacting Libby, that's a dicey thing to do once you've been subpoenaed. Most lawyers would refuse to let their clients contact that source unless they had been assured that the prosecutor will not persue obstruction of justice charges. That's why Matt Cooper's lawyer only contacted Karl Rove's attorney after he read statements from Rove's attorney in a newspaper article disavowing any promise between Rove and Cooper. You don't mess with federal prosecutors.

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Minneapolis, Minn.: From the Post story now online:

"But Joseph Tate, an attorney for Libby, said yesterday that he told Miller attorney Floyd Abrams a year ago that Libby's waiver was voluntary and that Miller was free to testify. He said last night that he was contacted by Bennett several weeks ago, and was surprised to learn that Miller had not accepted that representation as authorization to speak with prosecutors.

"We told her lawyers it was not coerced," Tate said. "We are surprised to learn we had anything to do with her incarceration."

So, Lucy, how does that waiver a year ago differ from the one Judy Miller received this week?

Lucy Dalglish: She heard it from Libby's mouth.

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Falls Church, Va.: Do you expect that Judy Miller will write a full accounting of her questioning in the Times similar to the one that Matt Cooper wrote in Time magazine immediately following his testimony to the grand jury?

Lucy Dalglish: I hope so.

Judy's a fantastic reporter, and I think the public deserves to know what this case has been all about.

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New York, N.Y.: Do you have any evidence to your 'theory' that Novak testified?

Lucy Dalglish: No.

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New York, N.Y.: This case raises many larger questions about journalistic shield laws. In an age of "blogs" and online reporting, should these laws extend to that type of publication? Who, precisely, is a "journalist"?

Lucy Dalglish: To quote Justice Potter Stewart, "I know a journalist when I see one."

Sorry for the flippant remark, but it's not that tough. I think there are many journalists who publish their work on the Internet, and they would be protected by the shield law that has been introduced in Congress.

There are several federl court cases out their (most notably the "Von Bulow" case) that, in general, journalists are people who collect news and information, do something to it editorially, and publish it to an audience. When deciding whether an Internet-based reporter is covered by the proposed shield law, a court will look to the frequency with which the person has been published. The current language talks about "periodicals" whether they are published in print or electronically. At the Reporters Committee, we frequently assist Internet-based journalists.

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New York, N.Y.: Do you think the Judith Miller case has set a new precedent for the courts, imprisoning journalists for protecting a source, even when they haven't published the information?

Lucy Dalglish: While the fact that Judy never published a story is certainly ironic, it had nothing to do with the legal issue of whether she would be compelled to testify. The prosecutor was interested in what she learned, not what she published.

Think of it this way, if you had knowledge of a crime, a prosecutor might want to know what you know, regardless of whether you passed the information along to your best friend.

Reporters in Judy's situation have always been at risk.

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Arlington, Va.: Was Fitzgerald talking to Judy Miller about filling criminal charges against her? Did Libby use Miller's not talking as a way to bargain with Fitzgerald?

Lucy Dalglish: I don't know the answer to either question.

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Seattle, Wash.: People obviously have lots of questions about Miller's situation -- it's baffling that Libby's people are implying that they didn't know Miller was protecting Libby.

But you know more than most people about the intricacies of this case. So what are the three biggest mysteries/questions that YOU would like Judy Miller to explain?

Lucy Dalglish: 1. Was Scooter Libby your source for information about Valerie Plame, or were you HIS source?

2. Do you feel manipulated by the White House?

3. Do you think any laws were violated in this case (including perjury)?

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Cherry Hill, N.J.: Since Fitzgerald agreed not to question her about any other sources, and since she was forced to spend 80+ days in jail for not talking about Libby, does it suggest that Libby is the focus of Fitzgerald's case?

Lucy Dalglish: It would seem to me that he was a big part of the investigation, although he has said he has not been told he is a "target," which is something federal prosecutors sometimes do.

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Hanover, N.H.: Something doesn't smell right about the explanations and analyses. Is your friendship with and admiration for Judy Miller getting in the way of your reporting?

Lucy Dalglish: I gave up reporting years ago. I'm a lawyer for a non-profit that does legal defense and advocacy on behalf of journalists working in the United States. I hope the journalists we have helped over the last several years in these reporters privilege cases feel that we have done a good job on their behalf.

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Omaha, Neb.: Do all the members of the reporters committee agree that Judith Miller acted correctly and Robert Novak, Matthew Cooper and the others who testifed did not?

Lucy Dalglish: I don't know. We have our semi-annual steering committee meeting on Sunday and I'm sure we'll be discussing this. In general, the Reporters Committee's position has been to not attack reporters who have made these difficult decisions, but to work very hard to make sure that courts and Congress recognize a reporters privilege to protect confidential sources.

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Bethesda, Md.: Is Judith Miller the same journalist who had very erroneous reporting on WMD before the Iraq war?

Lucy Dalglish: Yes.

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Los Angeles, Calif.: I expect Fitzgerald to give out indictments because he would not have put a reporter in jail if he had a weak case. What do you think? When do you expect Fitzgerald to give out indictments?

Lucy Dalglish: I really don't know if Fitzgerald believes he has a case or not. From watching him in the courtroom, I came to the conclusion that Mr. Fitzgerald takes whatever assignment is given to him and gives it his very best. He has a reputation for being relentless.

As for timing, the grand jury expires on October 28, so we'll probably know something on or about that date, or before.

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San Francisco, Calif.: Isn't it very possible that the crime under investigation, at this point, is something different than outing an operative or even perjury and obstruction of justice? That is, could it be a charge against White House officials for lying to Congress about the basis for going to war in Iraq?

Lucy Dalglish: That's not what Mr. Fitzgerald was asked to look into, so I doubt he'd go there.

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Anonymous: Do you think the press has covered this case effectively? What issues do you think the media should have covered with more diligence, if any?

Lucy Dalglish: I wish the media had "discovered" this case much sooner. Judy and her colleagues in the Plame case were not alone. In the last year, there have been more than 30 federal court subpoenas served on journalists asking for the identities of their confidential sources. You can read about this on our web site at www.rcfp.org.

Journalists need to do a better job explaining to the public that this is not about some speacial privilege for reporters. Rather, it's about protecting the public's ability to learn the truth from independent sources.

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Omaha, Neb.: If reporters are "wise" to ignore waives of confidentiality given by government employees as not voluntary then why is Judith Miller now convinced Scooter Libby's is now voluntary. It does not appear the Libby's job was ever in jeopardy.

Lucy Dalglish: Whatever Libby said to her in the recent telephone call must have convinced her the waiver was voluntary.

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Waterford, Va.: How should reporters balance their beliefs with the rule of law? In our system, if the highest court says that the First Amendmenmt does not protect confidentiality, that is the final word. Though I believe strongly in the First Amendment, does not the interpretation of the court trump that of the reporter?

Lucy Dalglish: Reporters do not believe they are above the law. As Judy and others have said, they knew they were violating the law and they were willing to take the punishment. FYI -- ordinary grand jury witnesses are similarly thrown in jail if they refuse to testify. It happens periodically.

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washingtonpost.com: The Reporters Committee for Freedom of the Press

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Fairfax, Va.: In your opinion is Judy Miller acting on behalf of this administration (Cheney, his staff, others) or is she an innocent victim of the prosecutor's tactics?

Lucy Dalglish: I don't think Judy Miller was acting on behalf of the administration. I also don't think she was an innocent victim of the prosecution. These are tough issues, and she was trying to live up to her professional duties as a journalist. Judy Miller is very good at what she does, and I hope she's back on the job soon.

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Prague, Czech Republic: What is the difference between civil and criminal contempt of court?

I hope it doesn't turn out Ms. Miller didn't go to jail because of a misunderstanding -- she's being held as a model of journalistic integrity over here.

Lucy Dalglish: Yes -- there is a difference. With civil contempt, you hold the key to your release in your hand. Once you agree to testify, they let you go. You are not guilty of a crime.

In criminal contempt, you are found guilty of the crime of refusing to testify and are sentenced to a fixed sentence. You don't get released even if your source comes forward. (This happened to reporter Jim Taricani in Rhode Island a few months back.)

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Lucy Dalglish: Thanks, everyone. The messages from reporters have piled up on my desk, so I better start calling them back.

Have a great day, Lucy Dalglish

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