Judy Miller and the damage done

The long-awaited New York Times report uncovered an internal mess that's "bigger than Jayson Blair." And it looks even worse for Scooter Libby.

Published October 16, 2005 6:50PM (EDT)

During the past couple of weeks, the New York Times has been promising to eventually publish a thorough account of its reporter Judith Miller's run-in with federal prosecutors investigating the leak of CIA agent Valerie Plame's identity. On Sunday, the paper finally published that report. Unfortunately, the account, along with a personal firsthand account by Miller herself, raises more questions -- about Miller, the Times and the Bush administration's attempts to manipulate the press -- than it answers.

The paper's coverage provides a broad and intriguing outline of Miller's dealings with I. Lewis Libby, Vice President Dick Cheney's chief of staff, and his attempts to discredit Joseph Wilson, the former ambassador who began criticizing the Bush administration's case for war in the summer of 2003.

But many details in the report are mystifying. In particular, it's unclear why the Times allowed Miller -- a reporter whose discredited work on weapons of mass destruction had recently embarrassed the paper -- to be put in charge of the Times' response to investigators looking into the Plame leak. Some revelations are astonishing: Apparently nobody at the newspaper asked to review Miller's notes in the Plame case before allowing her to defy Patrick Fitzgerald, the special prosecutor heading the case, and before the paper's management made her a high-profile symbol of press freedom in peril.

The Times account shows that senior management did not press Miller on her sources and what the sources had revealed to her about Plame, before backing her stance in public and in numerous editorials. It's hard to imagine why they didn't make sure she wasn't being used by officials in the Bush administration who may have been breaking the law. Then there's the matter of Miller's own unethical actions: The Times' report showed she lied to her editors about her involvement in the case, and maybe more disturbing, she agreed to allow Libby to hide his motives from readers by identifying him in two different ways. Why is she still working at the paper? (Unconfirmed reports say she has taken a leave of absence, but there's no word of any disciplinary action against her.)

Beyond the implications for Miller and the paper, the Times' report provides provocative new hints about what the grand jury investigating the leak of Plame's identity may be focusing on in the final weeks before it possibly hands down indictments against senior White House officials. The report does not look good for Libby. It indicates that he revealed Plame's identity to Miller, and, according to her own account, may have attempted to prevent her from telling all she knew about his role in the case to investigators. According to Miller, Fitzgerald asked her several pointed questions about Libby that indicate he may be nearing a decision on an indictment.

Here, then, are the main questions the paper's accounts raise for Libby, Miller and the New York Times.

What do we now know about Scooter Libby's involvement in the Plame case?

Even before Miller published her account, leaks from Fitzgerald's investigation indicated that Libby, like Karl Rove, took part in an effort to discredit Joseph Wilson. Miller's account underscores this fact: Both before and after Wilson went public with what he'd really seen in Africa (i.e., no sign that Saddam Hussein was looking for nuclear weapons there), Libby was telling reporters not to trust the former diplomat, and was trying to insulate Cheney and the White House from Wilson's damaging report.

In three interviews Miller conducted with Libby -- one before Wilson published his Op-Ed criticizing the administration, and two afterward -- Libby insisted that Wilson's trip was arranged by the CIA, not Bush or Cheney, who he said had no idea what Wilson had found in Africa. Over the course of the three meetings, Libby dished increasingly more dirt on Wilson and his wife: He initially told Miller that Wilson's wife worked for the CIA, and then later revealed that she worked at WINPAC, a CIA unit that dealt with weapons intelligence, nonproliferation and arms control.

It's unclear if Libby mentioned Plame's undercover status during these meetings, but Miller says she assumed that Plame was not undercover. It's also not clear if Libby told Miller Plame's name. The names "Valerie Flame" and "Victoria Wilson" appear in Miller's notebooks, but Miller says Libby did not provide them and, incredibly, she says she can't remember who did.

So is Miller exonerating Libby by insisting he didn't name Plame?

Not really; indeed, it's actually of little importance whether Libby ever uttered the words "Valerie Plame" in his chats with Miller. By pointing out that Joe Wilson's wife worked for the CIA, Libby was clearly identifying Plame even if he wasn't naming her. And identifying an undercover operative to a reporter may constitute a violation of the 1982 Intelligence Identities Protection Act, the law that many observers have long presumed the prosecutor is focusing on.

So is Scooter headed for the slammer?

We don't know. To violate the Identities Protection Act, a government official would have to be shown to have disclosed the identity of an agent that he knew was undercover. At the moment, that's the crucial bit of information missing from the public realm: Does Fitzgerald have any evidence showing that Libby knew Plame was undercover at the time he discussed her identity with Miller?

If Libby did not know that Plame was undercover, does he get off scot-free?

Not necessarily, because the prosecutor may be considering other possible violations.

One theory is that Fitzgerald is looking to charge someone in the Bush administration with breaking espionage law. Espionage law prohibits government officials or private citizens who hold security clearances from delivering classified information to people who do not hold security clearances. It has been previously reported that Libby and other Bush administration officials may have first learned of Wilson's trip from a top-secret State Department memo that had been floating around the White House that summer; the memo identified Wilson's wife in a paragraph marked "snf," meaning "Secret No Foreign," which specified that the information was secret and not to be shared with foreigners.

In other words, even if Libby didn't know that Valerie Plame was undercover, her identity, according to that memo, was top-secret information; Libby may have been breaking espionage law, then, by disclosing Plame's identity to a reporter.

Miller's account suggests that Fitzgerald is looking into this possibility. Fitzgerald asked Miller if she was cleared to receive classified information; she said that although she had once been granted such clearances -- when she reported on the hunt for weapons of mass destruction in Iraq -- she was not sure if she still did. Now, the fact that she even had such a security clearance appears rather bizarre and may prove to be of great consequence. Bill Lynch, a veteran CBS correspondent, wrote in to Jim Romenesko's media news site and called Miller's security clearance "as close as one can get to government licensing of journalists and the New York Times (if it knew) should never have allowed her to become so compromised." And Ivo Daalder, a senior fellow at the Brookings Institution and a former Clinton National Security Council staffer, pointed out here that "one of the most important obligations of a person receiving security clearances is not to reveal that information at any time, while one of the most important obligations of a reporter is precisely to reveal information the public has a need and right to know." He also wondered if this would be the key to Libby's avoiding any indictment.

If Miller does not enjoy such clearances, however, Libby may well have been breaking the law by discussing Plame with her.

So is that it? Is there more wrong that Libby may have done?

Oh yes. Observers have long suspected that Fitzgerald is also working on an obstruction of justice charge in this case -- meaning that he's looking to charge people who lied to investigators or in any other way attempted to block the inquiry.

Miller's account of her dealings with Libby suggests some basis for believing Libby may have been attempting to obstruct the investigation. For instance, Miller's lawyers say that when they first asked Libby's attorneys to release Miller from the confidentiality agreement she'd made with him, they said yes, but added that Libby had already testified that he had not disclosed Plame's identity to Miller. When Miller's attorneys refused to promise that she would exonerate Libby if she testified, Libby's side would say, "Don't go there, or, we don't want you there," according to Miller. This caused Miller to decide "not to testify in part because she thought that Mr. Libby's lawyer might be signaling to keep her quiet unless she would exonerate his client."

In a letter he sent to Miller releasing her from the confidentiality agreement, Libby wrote: "The public report of every other reporter's testimony makes clear that they did not discuss Ms. Plame's name or identity with me." Miller told Fitzgerald that she interpreted this passage as an attempt to influence her testimony: She wrote that the letter "might be perceived as an effort by Mr. Libby to suggest that I, too, would say we had not discussed Ms. Plame's identity. Yet my notes suggested that we had discussed her job."

OK, so that's what's damaging to Libby in this account. What do these articles say about Judy Miller?

Well, first, to the relief of many at the New York Times, these accounts exonerate Miller of the most fevered speculation about her role in this case -- the idea that she was the original source of Plame's name, and that she'd passed that information on to the administration through Libby.

According to Miller, the prosecutor told the grand jury that she was only a witness -- and not a subject or target -- of the inquiry; this suggests that he isn't looking to prosecute Miller for violating any law.

Beyond that, though, Miller's actions in this case look quite unsavory.

Can you explain what you mean? What did Judy Miller do here that was so wrong?

She protected -- and, indeed, still looks to be protecting -- people she knew were trying to discredit Wilson, even though they were possibly breaking the law, and even though she seems to have had no legal or ethical basis for doing so.

But doesn't Miller insist she was only upholding press freedoms in her willingness to go to jail to avoid testifying?

Yes. And there have been many valiant defenses of her stance.

But the record now indicates that for more than a year -- from August 2004, when she was first subpoenaed in the case, until Sept. 29, 2005, when she was released from jail -- she made only minimal efforts to convince Libby to free her from her agreement with him, even though, in the end, he appeared to have been willing to do so all along. In that time, she kept information from her bosses at the Times -- who say they let her lead the paper's handling of the affair -- as well as from the special prosecutor and, most important, from her readers. And she's still keeping information from her readers.

What do you mean? Didn't she tell all in these accounts?

No. As the Times report makes clear, Miller stonewalled the reporting team working on this case. Or, as the paper put it, "Ms. Miller generally would not discuss her interactions with editors, elaborate on the written account of her grand jury testimony or allow reporters to review her notes." And that's despite the fact that on Wednesday Judge Thomas Hogan lifted his contempt order, and Miller appears to be in no legal jeopardy in the case.

One Times staffer who spoke to Salon said her relative lack of cooperation with her colleagues is likely to continue to rankle the newsroom, even now that the story has been told. There doesn't seem to be any sound journalistic reason for her selective silence; as Jay Rosen, the NYU journalism professor and blogger writes, "What principle of confidentiality extends to 'interactions with editors?'"

Then there is the unbelievable fact that Miller cannot recall the most key detail in this incident, the source for Plame's name. Discussions with some at the Times indicated that this would be the hardest pill to swallow for people there: Either Miller is lying, they said, or she's sloppy to the point of ineffectiveness in her reporting. Neither scenario speaks for her continued employment as a star reporter.

So should Miller be fired? Will she be?

In its report on Miller, the paper suggested that Miller would return to the newsroom after taking a short break, but two staffers who spoke to Salon doubted that Miller would ever come back. Jay Rosen agreed, telling Salon: "I can't imagine she's still there in a month or even in a couple of weeks. We don't know how that's going to end, but I don't suspect she'll ever write another piece for the New York Times."

If she is fired, Rosen and others see two immediate causes for termination. One, she appears to have lied to Philip Taubman, the Times Washington bureau chief, when he asked her in the fall of 2003 whether any administration officials had disclosed Plame's identity to her. Miller said no -- even though Libby had discussed Plame's identity with her.

Second, Rosen notes, Miller agreed to identify Libby in her reporting as a "former Hill staffer" only because he wanted to mislead the public into thinking that the White House was not attacking Wilson. Miller's agreement violates the Times' current policy on confidential sources, which states: "It should go without saying that The Times is truthful. We do not dissemble about our sources." (This policy was adopted after Miller's interview with Libby, but its basic premise -- don't lie about sources -- was in effect in the summer of 2003.)

"If I were going to sum up the sordidness of Judy Miller in one detail," says Rosen, "it would be this incident. If you look at that anecdote carefully, you have to ask yourself, How far away from her mind are the readers? The readers aren't even in her universe. She's so far gone into this world of secrets and hidden information that representing readers is only a technicality to her."

But if Judy Miller was so sordid, why did the Times go to bat for her?

Because they didn't know, and didn't ask about, all the sordid details. As the Times account makes clear, bosses at the paper -- publisher Arthur Sulzberger Jr. and executive editor Bill Keller -- did not press Miller for her full story. They let her, in the words of Sulzberger, drive the car.

There is likely to be a newsroom uproar about this arrangement, some at the paper said. Why was this reporter -- whose WMD reporting should have warned bosses at the paper about her judgment -- allowed to lead the New York Times in a fight with the government without anyone having reviewed all of her dealings and deal making with Libby, and everything in her notes?

Some at the paper suggest that this was all about Miller. As a journalist whose reporting on terrorism at the paper had been praised (and, along with a team of Times reporters, awarded a Pulitzer), she was seen by the hierarchy as someone to trust and protect. But the Times' odd stance in this case -- its decision to fight the government blind, without even reading Miller's notes -- also had to do with its absolutist ideology on confidential sources, Rosen says. "Part of the big principled fight they were engaged in demanded that they not ask Miller too much about her sources, just as they don't want the prosecutor to ask about her sources," he says. In this case, though, fighting the principle without knowing the facts led the paper astray. It was a failure, says Rosen (as well as some at the paper), of management.

But if managers failed, will they be punished?

Staffers at the paper tamped down any suggestion that Keller's job is now in trouble, as was that of his predecessor, Howell Raines, after the Jayson Blair scandal broke. Raines was a tremendously polarizing figure in the newsroom, and the Blair affair provided a convenient opportunity for the staff to revolt against his leadership. Keller, meanwhile, is generally well liked and respected, and few hold him responsible for this debacle.

The job of the publisher is another story. The Times account indicates that Sulzberger was most determined to fight on Miller's behalf both in the courtroom and on the paper's editorial page, yet at the same time was ignorant of key details in Miller's reporting on the case. (He only learned last Thursday, for instance, from the Times' own reporters, of the "Valerie Flame" note tucked in Miller's "lost" notebook.)

None of the staffers who spoke to Salon suggested that Sulzberger should be replaced. And in any case, that decision would not be up to anyone in the newsroom -- the Times is a public company, and ultimately Wall Street, the Times' board of directors and the Sulzberger family, which controls the company, will have the final say over his job.

But beyond personnel, what does the story do to the long-term reputation of the paper?

It's unclear. Obviously it doesn't help. But at the moment, as some staffers at the paper said, much of the outcome of this case depends on the larger outcome of the leak inquiry. If it results in indictments that stick, Miller won't be seen as an obstruction to the prosecution, and the Times may therefore make it out OK. On the other hand, if Fitzgerald does not indict Bush administration officials, the Times may be blamed.

Yet observers outside the newspaper were less sanguine. Greg Mitchell, who edits Editor & Publisher, writes, "Miller did far more damage to her newspaper than did Jayson Blair, and that's not even counting her WMD reporting, which hurt and embarrassed the paper in other ways."

Jay Rosen concurs. "There's no question," he says, "this is bigger than Jayson Blair." The paper will be assessing how much bigger in the days and weeks to come.

By Farhad Manjoo

Farhad Manjoo is a Salon staff writer and the author of True Enough: Learning to Live in a Post-Fact Society.

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