Reporter freed, but case isn’t closed

THE biggest and bloodiest conflict ever fought in this hemisphere occurred when two groups of Americans -- the Army of the Potomac and the Army of Northern Virginia -- blundered into each other in a Pennsylvania crossroads called Gettysburg and found themselves locked in mortal struggle on ground neither side would have chosen.

It’s a mordant recollection to entertain on what ought to be a celebratory morning.

After all, New York Times reporter Judith Miller is free after spending 85 days unjustly -- though, unfortunately, not illegally -- behind bars for refusing to identity a confidential source before a federal grand jury. Her jailing at the behest of special prosecutor Patrick J. Fitzgerald was an affront to decency and something that should outrage every American who believes that a free and independent press plays an indispensable role in vindicating the people’s 1st Amendment rights.

This is especially true since Miller never wrote a story about the issue Fitzgerald ostensibly is investigating -- the question of whether government officials working out of the White House broke the law two years ago by revealing illegally that Valerie Plame was a covert agent of the CIA. That revelation -- first printed in a July 2003 syndicated column by Robert Novak -- followed publication in the New York Times of an op-ed piece by Plame’s husband, former U.S. Ambassador Joseph C. Wilson IV. In that article, the ex-diplomat charged that the conclusions he had drawn from a CIA-sponsored fact-finding trip to the sub-Saharan country of Niger contradicted allegations President Bush made in an address to Congress concerning Iraq’s purported attempt to obtain yellow-cake uranium from Niger. The president’s contention was central to the case he then was making for a preemptive attack on Iraq, whose dictator, Saddam Hussein, supposedly was attempting to build weapons of mass destruction.

In the days that followed publication of Wilson’s comments, various administration officials -- including Vice President Dick Cheney’s chief of staff, I. Lewis “Scooter” Libby, and presidential political advisor Karl Rove -- apparently told a number of reporters that Wilson had been put up to his trip by the CIA, where his wife worked. Whether Plame actually was named remains unknown.

Miller did conduct two interviews touching on the Plame-Wilson connection, but since she -- unlike four other journalists known to have given information to Fitzgerald -- never actually wrote a story, she essentially was subpoenaed and jailed for the mere act of asking questions and, then, refusing to betray her sources. It is hard to imagine a more fundamental or threatening intrusion into a reporter’s efforts to fulfill her public obligations.

So why isn’t her release an unambiguously satisfying event?

In part it’s because it was obtained by striking a deal with the prosecutor. It’s also because on Friday, Miller did testify for several hours before a closed grand jury. It’s because too little currently is known about what the provisions of her deal with Fitzgerald were -- and what is known raises additional questions.

Miller and the Times’ publisher, Arthur Sulzberger Jr., and executive editor, Bill Keller, said that she became free to testify when her source, whom the paper identified as Libby, personally waived any claim of confidentiality directly to her. But Libby made a broad or blanket waiver of any such claim in writing more than a year ago.

Now, there are good reasons to be suspicious of such blanket waivers. Those were convincingly expressed Friday by Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, in an online question-and-answer session hosted by the Washington Post: “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 in the 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.’ ”

Dalglish concluded that “these waivers are by their very nature coercive. Journalists are wise to ignore them.”

Agreed, but Libby’s lawyer Joseph Tate says he personally communicated an explicit waiver of his client’s claim to confidentiality to Floyd Abrams, one of Miller’s attorneys, more than a year ago. Abrams disputes parts of Tate’s account. Was this whole nasty episode the result of lawyers who dealt badly with one another?

In a statement to his own paper published Friday, Keller said Fitzgerald had given assurances that “he intended to limit his grand jury interrogation so that it would not implicate other sources of hers.”

What other sources? Some of the more conspiratorially minded commentators on this case have theorized that what Miller really does not want to disclose is that she was the one who carried knowledge of Plame’s identity from one government official to another -- functioning more like a journalistic Typhoid Mary than a reporter. It seems unlikely, but questions now linger.

Further, buried deep within the Times’ own story was the revelation that Miller not only would testify but also had agreed to give Fitzgerald “edited versions of notes taken ... about her conversations with Libby.” What notes and when did this issue arise and why?

As reporters David Johnston and Douglas Jehl wrote in the Times on Friday, “Much about Ms. Miller’s role remains unclear.” Keller, they wrote, “has declined to say whether she was assigned to report about Wilson’s trip, whether she tried to write an article about it or whether she ever told editors or colleagues at the Times that she had obtained information about Ms. Wilson’s role.”

It’s awkward to insist that other journalists who have sacrificed to protect the important principle of maintaining sources’ confidences should now disclose much of the information they fought to protect. But Sulzberger has made this case a matter of much broader concern by forcefully arguing that Miller’s treatment is evidence that Congress ought to adopt a federal shield law that would protect reporters from being subpoenaed and jailed in this fashion.

Under any circumstances, passage of a federal shield law would -- and should -- involve a discussion of rights and responsibilities. There are real, but inevitably antagonistic, interests that need to be carefully weighed and balanced. It’s a tricky and difficult undertaking, but particularly so during a period in which the administration is openly hostile to the press and large segments of the public are skeptical of journalists’ competence and fairness.

Right now, passage of such a law would involve not just difficult decisions but a hell of a fight followed by an uncertain outcome. Unlike those guys at Gettysburg, some of us would like to have a clearer picture of the ground we’re about to struggle over before we join the battle.