'Intelligent discontent is the mainspring of civilization.' -- Eugene V. Debs

Friday, October 14, 2005

Judith Miller and The New York Times: The Long Nightmare is Just Beginning 

UPDATE: From Raw Story, through pontificator at Daily Kos:

Conversations with nearly a dozen Times reporters revealed a scarred landscape of discontent. Few reporters were willing to go on the record, but none who spoke with RAW STORY said they supported Miller. Many voiced worries that the paper’s editor, Bill Keller, was sacrificing his own integrity to protect her. . . . . Miller, who joined the Times Washington bureau in 1977, spent 85 days in jail after refusing to reveal who told her the name of covert CIA officer Valerie Plame Wilson. Since her release, reporters say, she has not been cooperative with the paper’s investigation into her role in events surrounding the case. Two reporters allege there have been newsroom outbursts between Keller and Miller over her refusal to talk to the paper’s own reporters.

Need it be said that this is behaviour entirely consistent with someone facing the prospect of a criminal indictment, or, similarly, someone who is cooperating with Special Prosecutor Fitzgerald under duress, having been instructed to remain publicly silent under threat of indictment? Such a development is also indirectly suggested by the announcement of Times Public Editor Brian Calame that he would soon be writing about the controversy, having been given assurances that, "A representative of Ms. Miller has indicated that she will talk to me at some point."

ORIGINAL POST: Judith Miller has testified for the second time in front of the federal grand jury at the request of Special Prosecutor Patrick Fitzgerald about her early summer 2003 encounters with the chief of staff for the Vice President, Lewis Libby. It is an extremely ominous development for both Miller and her employer, the New York Times. As Swopa over at Needlenose observed about Fitzgerald, citing this excerpt from an August 15, 2005 Los Angeles Times article:

Although some prosecutors use grand juries to rubber stamp charges based on testimony from government witnesses, such as FBI agents, Fitzgerald views the grand jury process as a wide-ranging search for facts, an effect of which is to reveal people who have been less than truthful. The Plame investigation has involved dozens of witnesses.

"Pat definitely uses it as an inquisitorial body," said Joshua Berman, a former federal prosecutor who worked with Fitzgerald in New York and who is a partner with the law firm of Sonnenschein, Nath and Rosenthal in Washington. "He uses the grand jury as an apparatus to seek the truth. When people are not truthful … he believes those people should be punished."

Or, as Richard Sauber, the attorney for Time journalist Matt Cooper said more concisely, "I think people are going to be charged." Fear of criminal prosecution therefore explains why the NYT is scrupulously maintaining such an embarrassing silence about Miller's role in the investigation. After Miller's highly publicized initial appearance before the grand jury on September 30th, she subsequently discovered notes of another meeting with Libby on June 23, 2003. In an article published about a week ago, Reuters laid it all out, leaving little to the imagination:

Last Friday, after spending 85 days in jail, Miller testified before the grand jury about two conversations she had with Libby in July 2003 and turned over redacted notes.

She testified about a meeting with Libby on July 8, 2003 at the St. Regis Hotel and a later conversation by telephone on July 12, 2003, sources said.

But after she testified, Miller discovered that she had additional notes from the June 2003 conversation with Libby.

Put bluntly, Miller perjured herself by refusing to disclose her earlier conversation with Libby in June. Unless, of course, Fitzgerald improbably refused to ask if there had been any other meetings related to the subject of his investigation, which, given his willingness to incarcerate her for her testimony, is improbable, if not absurd. Furthermore, she, and/or the NYT, refused to produce these records in response to subpoenas issued compelling her grand jury testimony, as noted by Greg Mitchell of Editor and Publisher:

--Is the Times' reluctance to report fully on this case the result of being in a bit of hot water itself with the prosecutor? You'll recall that the prosecutor long ago subpoenaed the paper for any notes related to the probe and the Times replied that it had nothing —- or anything it did have belonged to its reporters (company policy, it said). Fitzgerald never seemed to challenge that. If Miller turned over the notes herself, is the Times still claiming the rule still stands?

Stunned, the mainstream media can't bring itself to believe that a self-styled star reporter from the most prestigious newspaper in the country faces the prospect of being indicted for perjury, obstruction of justice, and possibly, even exposing Valerie Plame's status as a covert CIA operative to Libby. The NYT could find itself separately charged with obstruction of justice if it falsely stated that it had no records responsive to Fitzgerald's subpoenas, although this seems less likely. One wonders, did anyone at the NYT naively rely upon a claim by Miller that there were no such records, or, alternatively, accept the legal parsing of counsel, related here by Mitchell, to helpfully put their signature on a declaration under penalty of perjury to this effect?

But such questions, while undoubtedly entertaining, divert us from the heart of the story. And, for that, we have to call Dr. Who, request the use of his TARDIS, and travel back to May, June and July of 2003. There are still some gaps, some unanswered questions, but here's the back of the envelope version, inspired by a revealing article by Gabriel Sherman in the New York Observer :

May 6, 2003: On the opinion page side of the NYT, Nicholas Kristof writes "Missing in Action: Truth", a column about the cooking of intelligence to support the presence of WMDs in Iraq, getting his information from Joseph Wilson behind the scenes.

May-June 2003: Judith Miller is concluding her treasure hunt for WMDs in Iraq as an embedded journalist with Mobile Exploitation Team Alpha empty handed, where, you might recall, she acted as a member of the search team, and got the commander's order to stop searching a particular area rescinded by calling a general who was a personal friend. One sees her aggression in a new light when one realizes that she was now being pressured by the lack of any WMD discoveries from inside the newspaper by Kristof.

June 2003: The news division enters the fray in light of the threat posed by Kristof's rogue operation on the opinion page side, Miller is assigned to investigate her own previous stories, so she goes to their favorite source, Libby, and talks to him on June 23, 2003. A meeting that was not disclosed by Miller to Fitzgerald until last week when she produced her notes of it.

July 6, 2003: The NYT publishes an article by Wilson, "What I Didn't Find in Africa", describing his inability to find support for the belief that Saddam Hussein attempted to obtain "yellowcake" uranium form Niger, a belief that formed the core of the Bush Administration's case for war against Iraq. According to Sidney Blumenthal, Miller's colleagues at the NYT recall that she was "livid" that the NYT had published it.

Such seemingly minor emotional details matter, because they explain Miller's subsequent behaviour in light of the air of desperation created by her inability to find WMDs in Iraq, and her increasing peril within the newspaper because of Kristof's insistence upon confronting the issue with the help of Wilson.

So, what happened on June 23, 2005? Personally, like Justin Raimondo and Arianna Huffington, I believe that Miller told Libby that Plame was a covert CIA operative, and that they conspired to give out her name to journalists like Matt Cooper and Robert Novak. As both Raimondo and Huffington have observed, Miller had written stories about WMDs and Iraq going back to the early 1990s, so she could have come across Plame's covert work in this field quite easily. And, note the following from a Daily Kos diary entry a couple of days ago:

Matthews just discussed the lastest news of the "Leak Case" with the Washington Post's Mike Allen, and NBC's Norah O'Donnel.

Mike Allen said people inside the White House are readying their legal defense, and that it will be that the Valerie Wilson information came from the press to them, not the other way around. One problem though, is that Allen said members of the State Department (including Colin Powell) have testified that the White House specifically requested the information about Valerie Wilson before there were any press accounts.

Of course, the prospect of Libby and Rove defending themselves by asserting that they got Plame's name from Miller (who else could it have been?) would shake the NYT to its foundations, regardless of the truth of it. My sense, however, is that Kristof's May 6, 2003 column was not considered a "press account" that crossed the radar of the State Department because it was printed as opinion, not a news, rendering it relatively non-threatening, except to Miller, because it was generated by her own newspaper. And, thus the circle is squared. Allen, being a journalist, implies that the idea that another journalist provided White House staffers like Libby and Rove with Plame's name is fictional by describing it as a "legal defense", but, as I said, Raimondo and Huffington believe it to be true, and the fact that Miller concealed the June 23, 2003 meeting until the last minute, hoping that the clock would run out on Fitzgerald's investigation, gives it circumstantial credibility.

Far-fetched, you say? Put yourself in the position of Miller and Libby in the early summer of 2003. As noted, they confronted a highly pressurized situation, and immediate, aggressive action was required to discredit and intimidate Wilson. Here's the thought process that these two amoral individuals would have gone through, fairly quickly, when considering the prospects of getting caught, which is all that would have mattered to them:

(1) the press would make a big deal of the exposure of Plame for a week or so, and then the story would fade

(2) if not, the investigation would be conducted by then Attorney General John Ashcroft, and summarily concluded with no misconduct found

(3) in the extremely unlikely event that the investigation was more thorough (and, here, they probably never contemplated the prospect that the investigation would get peeled away from Ashcroft), Miller could always fall back upon a journalist's need to protect her sources to bring things to a halt

And, remember, all of them, Rove, Libby, Miller, and her enabler, her boss, Executive Editor Bill Keller, were operating at a time when the ruthless Bush team was considered omnipotent. Never in a thousand years did they believe that Ashcroft would be thrown off the case and that Fitzgerald would take on the media with his subpoenas and force Miller, Cooper and Novak to testify. This was Miller's great utility to the neo-conservatives in the Bush White House: she could participate and do the dirty work, and never contradict anyone's story, like Libby's, because she could smile sweetly and invoke the sanctity of a journalist's need to protect her sources. Or, at least, that's what they thought.

One major issue that is neglected by both the media and the blogsphere is the significance of Miller's pending 1.2 million dollar book deal with Simon and Shuster. 1.2 million dollars for a book that few people will read, that will be remaindered in less than a month? If alarm bells haven't gone off in Fitzgerald's office, they should be. Hush money, anyone? If so, it worked for about a day or so, until Fitzgerald sprang his knowledge of that June 23,2003 meeting on Miller and her attorney, Bob Bennett. "Oh gosh, I forgot all about those notes, Mr. Special Prosecutor!" But a charge of obstruction of justice doesn't require that it actually work.

So, for Miller and the NYT, the nightmare is just beginning. She will soon find herself under indictment, or considered an unindicted co-conspirator, or, perhaps, merely a perjurer, forced to settle for the best possible deal, agreeing to assist Fitzgerald as required, used to compel pleas, and if necessary, testify in court as a hostile witness, where her initial refusal to testify, her perjury and her last minute release of highly pertinent documents, her notes of the 6/23/03 meeting, will all be put to good use to convict Libby, and possibly others associated with him.

Meanwhile, as for the NYT, the extent to which the newspaper was embedded with people aligned with the neo-conservative movement, people like publisher Arthur Sulzberger, former Middle East Bureau Chief Jill Abramson, Keller, William Safire, Thomas Friedman and, of course, Miller, is going to be highlighted for the whole world to see during the course of Fitzgerald's prosecutions. All sorts of people like this will briefly wander ghostlike through the proceedings, playing cameo roles, relating legally unimportant, but embarrassing tales that will grind away the NYT's credibility. Indeed, it is already being rumored that Fitzgerald has expanded the investigation to include Vice President Cheney and the activities of the White House Iraq Group. Huffington is suggesting that not just Miller, not just Miller and Keller, but that Miller, Keller and even Sulzberger himself, will be forced to resign to avoid a mass exodus. It will accelerate the substitution of the Internet for newspapers as sources of information, with all of the contradictions that this entails.

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