This article is the second in a four-part series on the many ramifications of Judith Miller's saga. Part I appeared in yesterday's Daily and can be accessed at www.tuftsdaily.com.
On Sept. 12, 2005, U.S. Attorney and Special Prosecutor Patrick Fitzgerald wrote a letter to I. Lewis "Scooter" Libby's lawyer Joseph Tate in which he said he was worried that New York Times reporter Judith Miller was in fact in jail due to a "misunderstanding" between her and Libby.
Fitzgerald's concern was rooted in an exchange that occurred on August 31. On that date, the imprisoned Miller told her lawyer, Robert Bennett, to call Libby's lawyer, Joseph Tate, to try to attain Libby's permission for her to testify. Tate responded by telling Bennett that Libby had already given Miller permission to testify - an entire year earlier.
On Sept. 15, Libby wrote Miller a letter telling her that "a few days ago, your counsel, Mr. Bennett, asked that I repeat for you the waiver of confidentiality that I specifically gave to your counsel over a year ago. His request surprised me...because my counsel had reassured yours well over a year ago that I had voluntarily waived the confidentiality of discussions, if any, we have had related to the Wilson-Plame matter...Your counsel reassured us that he understood this, that your stand was one of principle otherwise unrelated to us, and that there was nothing more we could do."
Having spent 85 days in prison, Miller was released on Sept. 29 after agreeing to testify before Fitzgerald's grand jury. Her stated reason for finally doing so answered none of the questions raised by the aforementioned correspondences: Miller said simply that she had left jail because her source had "voluntarily and personally released [her] from [her] promise of confidentiality."
For Slate's Jack Shafer, that explanation doesn't cut it. "You can't say, 'I'm in jail for a principle, I'm in jail for a principle, I'm in jail for a principle,' and then accept a waiver that appears to be very much like the waiver you rejected before," he tells me when I speak with him over the phone in March.
In his often-brash and always entertaining Slate PressBox pieces, Shafer pulls no punches. He regularly takes individual journalists, specific publications, and the news industry in general to task for their mistakes, and his critiques are as pointed as they are clever (which is to say, very). So when I speak with Shafer, I'm on guard; I expect him to have a somewhat prickly demeanor as well as a razor-sharp wit, and I brace myself for a potential upbraiding.
But only the quick wit component of that scenario materializes. Shafer is warm and funny and thoughtful, and when it comes to Miller, he's also - to a certain extent, at least - sympathetic.
"I have some sympathy for her, you know," Shafer says. "It's hard to be in jail for a principle, and maybe if I went to jail on a principle, I'd find some kind of principled way to get out of jail. I do think, though, that if you decide to go to jail on principle in a contempt case like this, you stay the course."
As far as the New York Times Magazine's national politics writer Matt Bai is concerned, when faced with pressure to reveal confidential sources, "staying the course" - that is, refusing to cave - is a journalist's only legitimate option. For that reason, he's troubled by the circumstances under which Miller left prison.
"What changed to make her feel she could leave jail? It still puzzles me," Bai says. "I would love to see the circumstances surrounding that illuminated, because I don't really understand it. I don't know if the paper was involved in that decision, if she just got tired of being in jail; I don't know if her source was adamant about her being revealing and coming forward."
Even if the case is the latter, Bai believes that a journalist's lips should stay zipped.
"We cannot get into the business of letting our sources release us from our promises," Bai says emphatically. "Once you do that, in any form, no matter how much we want to or how much they want to release us from our promises, you create a witch hunt situation where any time the government or employer wants to know who leaked, they can simply go to the possible leakers and say, 'Sign a waiver, give the reporter a waiver.' It's like a medieval witch hunt! If you don't sign the waiver, you're guilty; if you sign the waiver, you have to testify. There's no good way out of it."
There's also no way around the fact that the damned-if-you-do, damned-if-you-don't practice Bai describes - in which employers tell their employees to sign forms releasing any journalists to whom they may have spoken from any pledges of confidentiality they may have made - has been legitimized as a result of the Miller saga.
"I've been a reporter for a while now," Bai says. "I've been in court, and I went to graduate school and read lots of books, and I've never heard of a 'waiver' for confidentiality until the Bush Administration started saying, 'Look, our people will sign 'blanket waivers' and you can all testify.'"
To be fair, he says, many reporters have chosen not to honor that brand of waiver. But Bai is adamant that by allowing the government to assert the legitimacy of any kind of confidentiality waiver, journalists have allowed themselves "to be pulled into a trap that's going to have very far-reaching consequences."
"No kind of waiver should ever enter into this conversation," Bai says. "You make a promise. That's what it is; it's a promise. You can't be released from it by a source, because you never can know why that source is releasing you - you can't have sources releasing you from promises because they don't want you to go to jail!
"Your interest," he continues, "is to the public. It's not to yourself, and it's not to the source. So in my view, there's no such thing as a waiver. I realize that's a hard line, and that I could come to regret taking it one day, and wish that I didn't have to go to jail. I understand why people don't.
"But I think," he concludes, "that waivers don't exist."
Boston-based media lawyer and media law professor Rob Bertsche was Miller's partner in a 2005 debate over reporter's privilege at Boston University.
"She was a cult hero among these college students," he says. "They were coming up to her and asking for her autograph, swarming her, et cetera, as if she was this great anti-establishment hero."
Bertsche certainly wishes that at least one kind of waiver didn't exist: when I start to ask him about the use of the blanket variety, he interrupts me before I can finish my sentence.
"They're illegitimate," he says. "If you want to try to smoke out who a confidential source is, there are various ways you can try to do it. One is to try to get it directly by asking the reporter. As in Judith Miller's case, the reporter may refuse to disclose the source. So then, you try to find other ways to find out who the source is."
Bertsche pauses. "Lawyers are an ingenious species," he says. "So are prosecutors. There's more than one way to skin a cat, so if they can't get it from the reporter directly, they'll try to get it from the reporter or source indirectly."
That, he says, can be done in a number of different ways. "Blanket waivers is one - going through the universe of possible sources and asking them all to sign a statement that says 'If I was the person who provided this information to the reporter, I hereby waive any confidentiality I have,'" he explains.
But Bertsche has two major problems with this tactic. The first is very similar to Bai's, but Bertsche casts it in legal rather than moral terms: "Under the laws, the privilege belongs to the reporter and not the source, so the source's waiving confidentiality doesn't actually make it no longer a promise that can be enforced by law," he says.
Bertsche describes the second problem as the "more fundamental" one: issuing a blanket waiver, he says, is an inherently coercive act. In describing this problem, he again echoes Bai.
"The hope of the government, based on the Judy Miller case, is that everyone will feel required to sign that waiver, because the one who says 'No, I won't' is the one who must have provided the information," he says. "So either that source is required to out themselves, or they have to sign this waiver, and if they're signing this waiver to release the reporter from the promise, they're really doing so under coercion. There's just no way around it."
Though Bertsche and Bai agree on this point, the journalistic community as a whole is not of one mind where waivers are concerned. The divide, in fact, is rather sharp. Unlike Bai, Shafer believes that "not all waivers are created equally." He says that he doesn't "have a single, clear, flat view of the waiver, because it depends on who the waiver is for, what the conditions of the waiver are."
Jurkowitz falls into Shafer's relativist camp rather than Bai's absolutist one. "Blanket waivers are very much mistrusted, and I understand why," he says. "If I ever were in the position of being forced or asked, with a penalty of some sort staring me in the face, to identify a confidential source, I would not do so unless I had a clear, man-to-man, person-to-person assurance from that source releasing me. There's no way somebody could slip me a piece of paper from a source that says 'I hereby allow you to identify me.' I would need that assurance in person."
This sort of discussion among his journalistic peers both surprises and disturbs Bai: in his view, the emperor's not wearing any clothes. "We've gotten into this whole conversation about what kind of waiver is legitimate, and I was kind of shocked that nobody stood up and said, 'There's no such thing as a waiver,'" he says.
This issue isn't the only one upon which the country's journalists are split. Journalists' perceptions of Miller - and their perceptions of other journalists' perceptions of Miller -vary widely, raising questions about both the self-awareness and the insularity of the sectors within the realm of journalism.
Newsweek Chief Political Correspondent Howard Fineman says that before Miller was jailed, "nobody suggested that she had lost her journalistic bearings."
"I don't think the quality of her journalism, in terms of having become merely the product of unreliable sources or whatever, was generally thought about her," Fineman tells me. "I think her reputation, at the moment she went to jail, was pretty darn good - that even includes the controversy over the WMD stuff," he continues. "I think that by the time she went in, there were questions about whether she was too close to her sources. There was jealousy and questions over the conditions she was willing to abide by to get embedded with that WMD search group, and all that other stuff."
"But I think overall," he says, "people generally thought, 'OK, well damn, she screws up sometimes; she gets too close to her sources sometimes, but she's a pretty darn good reporter.' I think that was the general view, and I think that's generally earned her a justifiable sympathy on the part of other reporters in Washington and elsewhere in the country."
Not according to Washington Post ombudsman Deborah Howell. "Most journalists I talked to thought she had been discredited before she went to jail," Howell writes in an e-mail. "I think they agreed with her description of herself as Ms. Run Amok."
Journalists are more unified, however, when it comes to the issue of anonymous sourcing. The general consensus? Though it must be granted with discretion and care - and only when absolutely necessary - anonymity is a valuable tool in the news-gathering process.
"Anonymous sourcing is absolutely the lifeblood of any journalist who wants to report news that's not being spoon-fed to them via press release or at press briefings," says Anne Marie Squeo, who covered Fitzgerald's investigation for the Wall Street Journal.
"On the flip side," she continues, "reporters need to be a lot more responsible about it: you don't need an anonymous source to state the obvious for you, and we as a group have tended in recent years to be a little bit indiscriminate in granting anonymity because the competitive pressure is so high in the news business these days."
Still, she tells me that in her opinion, "people tend to go overboard on this criticism of anonymous sourcing." One of the people to whom she may be referring is Shafer, who wrote in February of 2005 that, "like insatiable vermin eating and rutting their way through a bulging grain elevator, anonymice continue to multiply in the pages of the top dailies." In that same column, he asserted that "journalists traditionally defend anonymous sourcing with vague assurances that blind comments 1) provide readers with valuable news unobtainable by any other means or 2) give the public a deeper understanding of the issues of day. But for all the promises of red meat, newspapers mostly serve hair balls."
When I ask Shafer for his thoughts on journalists' insistence that reliance on anonymous sources is a crucial component of bringing information to the public, though, his response is a nuanced one that has more in common than in contrast with Squeo's.
"It depends," he says. "It depends on what anonymous sources they're talking about. I'm a radical, but I'm not an absolutist."
To prove his point, Shafer directs me towards a piece he wrote praising Washington Post reporter Dana Priest, who wrote a heavily anonymous source-reliant series of articles on detentions in Afghanistan. "I approved of her coverage, where she quoted not a single source on the record and gave all this blind sourcing," Shafer says. "So I think that there is a place for it in journalism."
What place, exactly?
"I think it's defensible when it's the only way to get a whistleblower to speak," he answers. "But I don't think it's essential in the day-by-day coverage of government or institutions. It's a crutch."
Shafer tells me that in his opinion, "if a journalist wants to rely on an anonymous source to say that 'X is going to happen tomorrow' and he can't get his source to put their name to it, and he thinks it's so crucial, then he should state it on his own authority. You know, 'Tomorrow, Jack Shafer's going to be indicted on 17 counts of child molestation' - so that he is the authority, and he's putting his neck on the line."
But in Fineman's view, that type of reporting is just as troubling - if not more troubling - as reporting that relies too heavily on anonymity. "If you can't quote somebody anonymously, you don't quote them at all, so you end up saying it in your own words," he tells me. "So the ironic result is that sometimes there's less reporting in the finished piece, and more naked assertions by you, which I don't think serves anybody."
Fineman is of the opinion that the careful granting of anonymous does. "You can't operate without anonymous sources," he says. "I have a lot of people who I talk to who want to tell me some deeper thing about some other political figure, but they don't want to say it for attribution."
According to Boston-based media lawyer and journalism professor Sheldon Toplitt, it's in the public and the press's best interest for journalists not to acquiesce to those sorts of requests - or at least, to do so only after a thorough and thoughtful consideration of the consequences. "When you think about it," he says, "who are the anonymous sources? In addition to the whistleblowers" - in Toplitt's view, the few individuals to whom granting anonymity is justified - "there's the powerful people with agendas and the disgruntled employees." ("Never the 'gruntled' ones," he laughs.)
As Toplitt points out, the Valerie Plame case is far from the first time that the "powerful people" - on either side of the aisle - have purposefully leaked information that furthers their agendas to the press. Henry Kissinger was notorious for his habit of doing so. More recently, during the Clinton administration, the idea of Clinton's "Don't Ask, Don't Tell" policy on gays in the military was leaked to the press.
"It's like a free poll!" an exasperated Toplitt says. "If the public responds, 'Oh, no; we can't have a bunch of mincing homosexual soldiers defending our country,' then the president's spokesman just can say, 'Oh, no, no, no! It's not true! I don't know where that leak came from,' and they can adjust the policy accordingly."
"Anonymity," Toplitt says, "has been too loosely given and granted. The press has to get its own house in order to win back public support. What the public doesn't like is this arrogance: 'We're the press, so we can do what we want.' There has to be a rethinking of anonymity on all counts, and the press has to use their power properly."
But "the press" is not some vague and monolithic entity that makes and implements decisions in uniform ways. It is instead a teeming mass of very fallible - but hopefully, very well-intentioned - individuals, meaning that for "the press" to use its power properly on a large scale, reporters must do so on a much-smaller individual scale.
"Everybody has their own motives," Fineman says of anonymous sources. "Up to a certain point, the readers have to trust me not to abuse the privilege of it. Readers have to trust that they're getting sort of this more flavorful, more real sense of politics than they would otherwise."
Wondering how Fineman ensures that readers' trust in him is not misplaced, I ask him how he evaluates his potential anonymous sources' motivations.
"Well, I know they all have them!" he laughs. "If somebody is telling you something explosive about another political figure, their motives had better be pretty pure. It's a combination of the explosiveness of what they're saying and the purity or lack of purity of their motives. It's a sliding scale kind of thing."
That sliding scale too often becomes an open door, according to the Boston Globe magazine's Neil Swidey. He writes in an e-mail that though "at times, there is no way to avoid their use and still get vital information across to readers," anonymous sources have "almost never" been included in his pieces.
"I have found, both as an editor and especially as a reporter, that far too many journalists allow far too many sources to be quoted unnamed without doing everything they can to avoid it," he writes in an e-mail to me. "In some quarters, the use of anonymous sources is almost the default."
"As I said, sometimes it can't be avoided," he continues. "But I've found that if you're persistent enough, you can usually get people to go on the record."
Part III of "Miller the Martyr?" will appear in tomorrow's Daily.
