Mickey is wondering what Judy Miller is up to; Arianna Huffington has a big July 31 post, but treads water on Aug 1; and Richard Cohen of the WaPo joins in on Aug 2. Since Mr. Cohen has a baffling intro, let's start there:
Judith Miller in Jail: Principle vs. PoliticsBy Richard Cohen
Before Judith Miller of the New York Times went to jail for not revealing her sources...
...Whatever her politics, whatever her journalistic sins (if any), whatever the whatevers, she is in jail officially for keeping her pledge not to reveal the identity of a confidential source. (If that's not the case, then we don't know otherwise.) That pledge is no different than the one Bob Woodward made to Mark (Deep Throat) Felt...
Hold on! I am gloomily resigned to the Times promoting the notion of a secret source at every opportunity, but Mr. Cohen at the WaPo is under no obligation to join in - as per Justice Dept. guidelines, Fitzgerald has delivered to Ms. Miller a narrow subpoena ordering her to testify about her conversations with one named official. Let's see, here is the WaPo covering the subpoenas last winter:
According to the appellate court's opinion, Fitzgerald knows the identity of the person with whom Miller spoke and wants to question her about her contact with that "specified government official" on or about July 6, 2003. Miller never wrote a story on the subject.
And here is a WaPo Q&A about this case, which might aid Mr. Cohen's understanding:
Q: Doesn't Fitzgerald know the identities of Miller's and Cooper's sources? Haven't the sources signed waivers that allow the reporters to talk to the prosecutor?
Yes and yes. But Miller, who did some reporting but never wrote a story, says that the waiver is not voluntary under these circumstances and that she is upholding the journalistic principle of never breaking a promise of confidentiality to a source.
This is not confusing, although the Times would like it to be - I suspect public sympathy for Mark Felt and protecting "identities" runs higher than public sympathy for protecting the reporter's side of a conversation when the official has already given his side.
Whatever his motive, here is a bit of obfuscation from NY Times editor Bill Keller on July 6, as Ms. Miller was jailed:
TERENCE SMITH: Now, the prosecutor made the point in court that not only does he know the identity of Judy Miller's source, that he -- that the source has signed a waiver of confidentiality, in which case, what is Judy Miller defending?
BILL KELLER: I don't know whether the special prosecutor knows the identity of her source. I do know this: that Judy Miller made an absolute pledge to her source that she would not reveal his name or the substance of their conversation, and to this point, she has received no waiver or release that she regards as freely given anyway from that source.
He doesn't know if Fitzgerald knows her source? Has he read the subpoena? He could break news here if Fitzgerald, the judges, and the WaPo are all wrong.
Apparently, in this snippet from Arianna (7/31/03), Bill Keller is delivering that same spin:
When asked by George Stephanopoulos on Nightline if he knew who Miller's source was, he refused to say yes or no.
So, what game is Ms. Miller playing at? It is possible that in a broad sense, Keller is being truthful when he says that he does not know who Miller is protecting. There has been speculation (fueled, no doubt, by Ms. Miller's own statement to Aaron Brown) that she is declining to testify about her current source (the WaPo says it is Libby, mostly) because she calculates that she will get the Matt Cooper treatment - Mr. Cooper complied with a subpoena to testify about Libby and got slapped with another one to talk about Rove.
However, perhaps some legal eagles can help me out here. Suppose Ms. Miller were to comply with the subpoena to testify about Mr. X, who we think is Libby. She then gets out of jail. Suppose further that her testimony raises as many questions as it answers - in restricting her testimony to her conversations with Libby, she tells the grand jury that she passed to Libby the news that Valerie Plame was with the CIA and was involved with Wilson's trip, but refuses to reveal her source for that information.
Fitzgerald will want to know her source, of course. But Justice Dept. guidelines do not allow a fishing expedition - he must show that he has exhausted all reasonable alternative means of learning her source before attempting to compel her testimony.
But what is reasonable? Should he go out and interview everyone in the CIA who knew Ms. Plame and knew about the trip? Why not?
And that could take months, or past the term of this grand jury.
Which means what? My *guess* is that, if Ms. Miller is protecting a different source, she could testify about her talk with Libby and either run the clock out on this investigation, or re-fight the subpoena battle over a new name, if Fitzgerald ever comes up with one.
And if her source was her personal knowledge of Ms. Plame from previous reporting and networking? We need legal advice on this point, but I would think that she could simply testify that she is not going to discuss how she came by her knowledge of Ms. Plame, since it was not in a conversation with Libby and therefore is not covered by the subpoena.
Which suggests, again pending legal advice, that if Ms. Miller was acting exclusively in her own self-interest, she could get out of jail and leave us, and Fitzgerald, wondering how she learned about Ms. Plame.
Now, since she is choosing to stay in jail, does this mean that she must be acting in noble defense of a journalistic principle? Maybe. Or maybe there is a book deal to consider, or maybe she and the Times figure that the embarrassment factor of disclosing that their reporter outed Ms. Plame to Libby is too ghastly to endure.
But being in jail can't be fun, either. And if she was really protecting a source, I think she could get out, and battle Fitzgerald another day. Which leaves me circling around - what principle, or person, is she protecting?
MORE: TalkLeft has suggested that Miller really is protecting Libby, because she knows/suspects that some element of her testimony will be ghastly. But does she also know that Libby perjured himself on that key point? And if the topic was a "get Wilson" strategy meeting, have all the other meeting participants also perjured themselves?