Fat Steve's Blatherings

Saturday, October 01, 2005

The Judith Miller Case: What was REALLY Going On?

Special Note:

        Welcome, Instalanchers.  You can find some more on the Judy Miller story here and here, and the homepage is here.  Enjoy.


        According to the New York Times, Judith Miller spent almost two months in jail before beginning the negotiations with her non-secret source that resulted in her release.  WHY?  I find her claims to be protecting a source and a principle are unbelievable.

At Length:

        As I noted yesterday, New York Times reporter Judith Miller was released from jail after finally agreeing to testify on about her confidential conversation with a source.

        Now, the Times has published a story about the release, and it doesn't add up.  (The story is also archived here against the day when the Times stops making it available free, or for those who won't register with the paper).

        The Times reports that Miller's source was I. Lewis Libby, "according to people who have been officially briefed on the case."

        Over a year ago, when this brouhaha first started, Libby and other possible sources publicly released reporters from any pledges of confidentiality as far as grand jury testimony was concerned.  But some reporters refused to accept those releases, suspecting that the releases had been coerced by pressure from the President, who would fire them if they didn't make such statements.

        OK, fine.  Once, in California, a reporter published a story on the California Supreme Court that irritated the Justices.  They ordered him to disclose his source, whom they believed was a court clerk.  When he refused, the Justices trotted the clerks out to say 'If I was your source, I release you from any pledge of confidentiality."  The reporter rightly refused to take this seriously.  So, I can see why Judith Miller would refuse to accept that waiver.  But she could have had her lawyer get in touch with Libby's lawyer, and find out what Libby really wanted.  Apparently, such contact was made.

        Back then, Miller's lawyer was Floyd Abrams, who fought Miller's subpoena on the grounds that the First Amendment guaranteed her right to refuse to testify.  This claim was squashed by the courts.  According to the Times's story of yesterday:
        . . . Libby and his lawyer [Joseph Tate] communicated their voluntary waiver to another lawyer for Ms. Miller, Floyd Abrams, more than a year ago, according to those briefed on the case.

        Stop and think about that.  If the Times story is accurate (always doubtful, with the Times of today), for over a year, Miller had an assurance via Abrams that Libby said it was OK for her to testify about their contacts, yet she still refused.

        Why didn't Miller accept the release?  The Times story says (well towards the end, where many won't read it):
        The agreement that led to Ms. Miller's release followed intense negotiations among her; (sic) her lawyer, Robert Bennett; Mr. Libby's lawyer, Joseph Tate; and Mr. Fitzgerald.

        The talks began with a telephone call from Mr. Bennett to Mr. Tate in late August.  The discussions were at times strained, with Mr. Libby and Mr. Tate asserting that they communicated their voluntary waiver to another lawyer for Ms. Miller, Floyd Abrams, more than a year ago, according to those briefed on the case.

        Other people involved in the case have said Ms. Miller did not understand that the waiver had been freely given and did not accept it until she had heard from Mr. Libby directly.

        Ms. Miller authorized her lawyers to seek further clarification from Mr. Libby's representatives in late August, after she had been in jail for more than a month.  Mr. Libby wrote to Ms. Miller in mid-September saying he believed that her lawyers understood during discussions last year that his waiver was voluntary.

        On Sept. 16, Mr. Tate wrote to Mr. Fitzgerald saying his conversations with Mr. Abrams last year were meant to assure Ms. Miller that a broad waiver that Mr. Libby signed in late 2003 was not coerced and applied specifically to Ms. Miller.

        On Thursday, Mr. Abrams wrote to Mr. Tate disputing parts of Mr. Tate's account.  His letter said although Mr. Tate had said the waiver was voluntary, Mr. Tate had also said any waiver sought as a condition of employment was inherently coercive.

        Mr. Tate said in an interview on Thursday, "Her lawyers were provided with a waiver that we said was voluntary more than a year ago."  Mr. Abrams would not discuss the question in a brief telephone conversation on Thursday.

        So last year, the waiver was inherently coercive, but this year its not?  Or maybe, last year, Miller wasn't sure if the waiver was voluntary, but when faced with the prospect of jail time, she didn't seek clarification, even though she didn't want to go to jail?  Or perhaps it never occurred to her to seek clarification of the waiver until she'd spent something like six or seven weeks behind bars?  I just can't believe any of this.

        In case you've forgotten, Miller went to jail on July 7th.  If the Times story is accurate, Miller had her lawyer sit on his hands for almost two months before starting the process that got Miller out.  SO the question is, what was Miller's real goal?

        I could speculate, but I won't (yet).  But the idea that she was protecting a source or a principle can no longer be taken seriously, always assuming the Times story is accurate.  The question of Miller's real goal is one the blogosphere should focus on.



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