New York Times executives "fully encouraged" reporter Judith Miller in her refusal to testify in the CIA leak investigation, a stance that led to her jailing, and later told Miller she could not continue at the paper unless she wrote a first-person account, her attorney said yesterday.
The comments by Robert Bennett came as Executive Editor Bill Keller accused Miller of apparently misleading the newspaper about her dealings with Vice President Cheney's top aide, signaling the first public split between Miller and the management of a newspaper that had fully embraced her in the contentious legal battle.
Bennett, Miller's lawyer, said he argued with Times executives that her agreement with special prosecutor Patrick Fitzgerald to testify before a grand jury did not entitle her to put "in the newspaper" her off-the-record conversations with Lewis "Scooter" Libby, Cheney's chief of staff.
Disputing a lengthy Times story last Sunday in which Publisher Arthur Sulzberger Jr. said that "this car had her hand on the wheel," Bennett said Sulzberger and Keller "were making it very clear what they thought she should do. . . . She may be controversial in some things, but the bottom line is she spent 85 days in jail, mostly on a principle which the New York Times fully encouraged her to assert." He added that the executives left the final decision to Miller.
Bennett's comments, in response to a reporter's inquiry, followed a memo to the Times staff in which Keller distanced himself from Miller even while acknowledging several mistakes on his part.
"Until Fitzgerald came after her," Keller wrote, "I didn't know that Judy had been one of the reporters on the receiving end of the . . . whisper campaign" against Joe Wilson, the husband of CIA operative Valerie Plame. "I should have wondered why I was learning this from the special counsel, a year after the fact." Citing a 2003 conversation with Miller that was recalled by Washington bureau chief Philip Taubman, Keller wrote: "Judy seems to have misled Phil Taubman about the extent of her involvement."
Further, Keller said, "if I had known the details of Judy's entanglement with Libby, I'd have been more careful in how the paper articulated its defense and perhaps more willing than I had been to support efforts aimed at exploring compromises."
Keller was traveling yesterday and could not be reached. Managing Editor Jill Abramson and George Freeman, a Times Co. lawyer involved in the case, did not respond to phone messages, and a Times spokeswoman declined comment.
Miller has been the focus of enormous controversy since her release from an Alexandria jail last month under a waiver of her confidentiality agreement with Libby, whose attorney insists he had offered the reporter the same release a year earlier. She says she did not consider Libby's waiver voluntary until she spoke to him and received a letter urging her to "come back to work -- and life."
Many of Miller's Times colleagues are angry at her and some media critics have called for her firing. But she has also won applause for standing up for the principle of protecting confidential sources, and the Society of Professional Journalists this week gave her a First Amendment award.
Miller's refusal to be interviewed by the Times until about 24 hours before the paper's deadline for the Sunday paper meant, as the New York Observer has reported, that about 250,000 copies were printed without the 6,000-word news story.
Bennett said he forcefully argued against Miller's accompanying first-person piece about her dealings with Libby because "it could affect the criminal prosecution" of senior administration officials who may have outed Plame as working for the CIA as part of a campaign against her husband, a White House critic. Such an article also "would antagonize the prosecutor, Mr. Fitzgerald," Bennett said.
"At one point Judy agreed to do what I recommended. But she was under tremendous pressure by the New York Times to write the story" as a condition of her employment.
While Keller and Abramson argued that the Times had a responsibility to level with its readers once Miller was no longer in legal jeopardy, Bennett contended that the waiver from Libby and agreement with Fitzgerald applied only to Miller's grand jury testimony and not to telling the world about her private conversations with Cheney's top aide. If revealing everything to readers "were the trumping principle," Bennett said, "you shouldn't respect confidential sources." It is not illegal, however, for grand jury witnesses to discuss their testimony.
Bennett said he insisted that Miller not provide her notes to the Times reporters conducting the inquiry, a decision that has subjected the Pulitzer Prize-winning correspondent to considerable criticism.
"They were documents which had been subpoenaed by the grand jury, and I didn't think it was appropriate to share them," he said. "But even if it wasn't illegal, there was a pending criminal investigation."
What Miller told the grand jury has also come under scrutiny. A lawyer familiar with her testimony, who asked not to be identified because grand jury proceedings are secret, said Miller volunteered information about two conversations with Libby in July 2003, but did not mention a June 23 discussion in Libby's office until Fitzgerald told her there were White House records of the visit. Miller testified that she did not recall the meeting, but later found references to it in another notebook that had not been subpoenaed, and she testified a second time.
Bennett said it was "absolutely false" to suggest that his client was withholding information, noting that it was a two-year-old conversation that did not seem like "a big deal at the time."
Miller has confirmed that Libby discussed Plame with her in the two July conversations and possibly in the earlier meeting, but said she cannot remember who told her in another instance about the woman she recorded in her notebook as "Valerie Flame."
During the Times inquiry, Bennett said, the reporters also asked for his notes debriefing Miller after her grand jury appearance, but he insisted that she not turn them over.
In his memo, Keller said that although he wishes he had pressed much earlier for more information about Miller's encounters with Libby, "in the end, I'm pretty sure I would have concluded that we had to fight this case in court. For one thing, we were facing an insidious new menace in these blanket waivers, ostensibly voluntary, that administration officials had been compelled to sign."
As a hard-charging investigative reporter who joshed that her nickname was "Miss Run Amok," Miller drew fierce criticism for reporting stories from 2001 to 2003, based on administration and Iraqi sources, that Iraq possessed weapons of mass destruction. These carried headlines such as "An Iraqi Defector Tells of Work on at Least 20 Hidden Weapons Sites" and "Illicit Arms Kept Till Eve of War, an Iraqi Scientist Is Said to Assert." Miller now admits these stories were wrong, and Keller, who succeeded Howell Raines in the summer of 2003 after the Jayson Blair fabrication scandal, corrected some of them in an editor's note last year.
"I wish we had dealt with the controversy over our coverage of WMD as soon as I became executive editor," Keller wrote. "At the time, we thought we had compelling reasons for kicking the issue down the road. The paper had just been through a major trauma, the Jayson Blair episode, and needed to regain its equilibrium. It felt somehow unsavory to begin a tenure by attacking our predecessors . . . and I feared the WMD issue could become a crippling distraction."
But, he added, "by waiting a year to own up to our mistakes, we allowed the anger inside and outside the paper to fester. Worse, we fear, we fostered an impression that the Times put a higher premium on protecting its reporters than on coming clean with its readers. If we had lanced the WMD boil earlier, we might have damped any suspicion that THIS time, the paper was putting the defense of a reporter above the duty to its readers."
In a sign of how deeply the Miller drama has roiled the Times newsroom, Keller endorsed an e-mail by White House correspondent Richard Stevenson, who said the paper should "go to the mat" for its reporters "but only to the degree that the reporter has lived up to his or her end of the bargain, specifically to have conducted him or herself in a way consistent with our legal, ethical and journalistic standards, to have been open and candid with the paper about sources, mistakes, conflicts and the like."
Asked about Keller's criticism of Miller, Bennett said: "I am very concerned now that there are people trying to even old scores and undercut her as a heroic journalist."