Judy Miller is free...Whoop-dee-damn-doo.

Judy Miller, the New York Times reporter who went to jail for not revealing the confidential source she interviewed regarding the Valerie Plame case, got out of jail on Thursday. Due to her oh so noble stand, she became the cause celebre for the media, the poster girl for the need for a new federal shield law that would protect reporters from revealing confidential sources.

Miller was freed once she agreed to testify before the Plame grand jury. According to the New York Times, Reuters, the AP, and the Wall Street Journal, here are the circumstances that led to her consent:

• Special Prosecutor Patrick Fitzgerald agreed to limit his questions to Miller to her conversations with her source about Plame.
• Miller received a letter and phone call from her source releasing her from any obligation of confidentiality.
• The phone call occurred on September 19, and Miller told Libby that "I wanted you to tell me personally" that a waiver he had signed was voluntary.
  

Here is part of what Miller had to say upon her release:

Recently, I heard directly from my source that I should testify before the grand jury. This was in the form of a personal letter and most important, a telephone conversation, a telephone call to me at the jail. I concluded from this that my source genuinely wanted me to testify. These were not form waivers. They were not discussions among lawyers.

*******

I served 85 days in jail because of my belief in the importance of upholding the confidential relationship journalists have with their sources.

Believe me, I did not want to be in jail. But I would have stayed even longer if I had not achieved these two things: the personal waiver and the narrow testify - and the narrow testimony.

*******

I am hopeful that my very long stay in jail will serve to strengthen the bond between reporters and their sources. I hope that blanket waivers are a thing of the past. They do not count. They are not voluntary and they should not be accepted by journalists.

I am also hopeful that my time in jail will help pass a federal shield law so that the public's right to know can be protected.

Wow. What a paragon of principle and perseverance, huh? Well, that's one way to look at it. However, I believe the facts show that Judy Miller went to jail not to uphold some grand principle, but rather to resurrect her own damaged career.

Miller's source turns out to be Scooter Libby, who happens to be Vice President Cheney's chief of staff. The articles cited above show that Libby supplied a written waiver of confidentiality to Miller well over a year ago. Miller, however, considered the waiver to be of no effect because it was a form waiver, and she felt it had been coerced. Both Libby and his lawyer say none of that is true and that Libby's lawyer made that clear over a year ago. One of Miller's lawyers tells a very different story.

These differing views are seen in three letters: one from Libby to Miller; one from Libby's lawyer, Joseph Tate, to Fitzgerald; and one from one of Miller's lawyers, Floyd Abrams, to Tate. Libby's letter, dated September 15, 2005, in part said the following:

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, but I am pleased to comply, if it will speed your return.

I was surprised at Mr. Bennett's request because my counsel had reassured yours well over a year ago that I had voluntarily waived the confidentiality of discussions, if any, we may have had related to the Wilson-Plame matter. As you know, in January 2004 I waived the privilege for purposes of allowing certain reporters identified by the Special Counsel to testify before the Grand Jury about any discussions I may have had related to the Wilson-Plame matter. The Special Counsel identified every reporter with whom I had spoken about anything in July 2003, including you. My counsel then called counsel for each of the reporters, including yours, and confirmed that my waiver was voluntary. Your counsel reassured us that he understood this, that your stand was one of principle or otherwise unrelated to us, and that there was nothing more we could do. In all the months since, we have never heard otherwise from anyone on your legal team, until your new counsel's request just a few days ago.

(emphasis added). Tate's letter to Fitzgerald (dated September 16, 2005), provided additional details:

You recite quite correctly the facts regarding Mr. Libby's cooperation with your office and with the grand jury. Mr. Libby did voluntarily provide your team with the written waiver immediately when it was presented to us, well over a year ago. On several occasions, when counsel for other reporters reported to you that they were concerned that the waiver was coerced, you or members of your team reached out to me and asked me to allay their concern. I, with Mr. Libby's approval, did just that. In addition, there were others who asked for such assurances and I gave them. Our position has always been that it is in Mr. Libby's best interest for the reporters to testify fully.

With regard to Ms. Miller, we provided the same assurances long ago. Her attorney and I had several conversations about this matter. Over a year ago, I assured him that Mr. Libby's waiver was voluntary and not coerced and she should accept it for what it was.

(emphasis added). Miller's lawyer, Floyd Abrams, in a September 29 letter, disputed almost everything said by Libby and Tate:

It is true that in conversations with me late last summer you told me that Mr. Libby had no objection to Ms. Miller testifying before the grand jury about her meeting with him in early July of 2003. In our conversations, however, you did not say that Mr. Libby's written waiver was uncoerced. In fact, you said quite the opposite.

*******

You also state in your letter that I "assured" you during our conversations of last summer "that there was nothing [Mr. Libby or you] could do" that would change Ms. Miller's position. That is simply inaccurate. Not only have I never said that, but I have never said anything resembling that to you.

(emphasis in original).

So who is telling the truth? For me there are two reasons to believe Libby and Tate. First, as noted in Libby's and Tate's letters, there were other reporters to whom Libby spoke, and they eventually testified after being contacted by Tate and told that the waiver was valid. The point here is, as expressed by David Johnston and Richard Stevenson in the New York Times, "Three recent letters from people involved in the case and the experiences of other reporters suggest that a similar deal may have been available for some time, raising questions about why Ms. Miller decided to testify now." Another New York Times article (by Adam Liptak), provided further explanation:

At least four other reporters have testified in the investigation, which has repeatedly reached into the White House. They all testified wholly or partly about conversations with Mr. Libby, and one, Matthew Cooper of Time magazine, testified about a conversation with Karl Rove, the president's chief strategist.

*******

But other reporters struck deals with Mr. Fitzgerald last year that also limited the questions they would be asked. For instance, Glenn Kessler, a reporter for The Washington Post, testified in June 2004 on ground rules essentially identical to those Ms. Miller obtained, according to an article in The Post at the time.

Simply put, it seems that Miller could have obtained the assurances from Libby and an agreement from Fitzgerald long before now. And that indeed leaves unanswered the question of "why now?"

And that leads me to the second reason I place more credibility on Libby and Tate in this matter. It is not apparent to me what motive or reason Libby would have to give Miller any impression that his waiver of confidentiality was not voluntary (and keep in mind that was the reason Miller previously refused to testify), particularly when other reporters had already testified about their conversations with Libby. Miller, on the other hand had a very good reason to go to jail.

Her career had been severely damaged--and through her own fault, I might add. Over at the Reuters website is a "fact box" about Miller. Here is the key portion:

Miller was also the author of several articles about weapons of mass destruction written before and just after the 2003 invasion of Iraq that were later questioned. The New York Times admitted in an unusual note from the editors that it had failed to adequately challenge information from Iraqi exiles who were determined to show that Saddam Hussein had weapons of mass destruction and overthrow him. The New York Times had often relied for its stories on Iraq on Iraqi exile Ahmad Chalabi, once considered Washington's top Iraq ally but whose information later proved to be faulty.

This is being too kind to Miller. She was nothing less than a shill for the Bush administration's claims of WMD in Iraq. The "unusual note" from the editors of the New York Times (dated May 26, 2004) basically adressed all the articles written by Miller. For evidence of this, check out "A Sample of the Coverage" addressed by the editors' mea culpa. That list includes 6 articles concerning WMD that were written before the war. Four were written by Miller. The other two--those Miller did not write--are entitled "Agency Challenges Evidence Against Iraq Cited by Bush" and "Report's Findings Undercut U.S. Argument." Four other articles about WMD were written between the start of the war and June 1, 2003. Miller's byline appeared in each of those four articles. Also, Chalabi's information did not just turn out to be faulty. Chalabi admitted in February 2004 that he--and his network of exiles and "defectors"--lied. For more details about Chalabi and his intentional bullshit, read "How Ahmed Chalabi conned the neocons." As it turns out, most people in the U.S. government concluded that Chalabi and his cohorts were not to be trusted. The exceptions were the neocons (Cheney, Rumskull, Wolfowitless, Fieth, Perle, Bolton, etc.). They were in charge, and they saw to it that Chalabi's "intelligence" determined policy. Moreover, as I have shown in various posts in August 2004, there was plenty of information before the war to raise serious doubts about the Bush administration's emphatic insistence that Iraq had WMD.

By the time the New York Times admitted that mistakes had been made, no WMD had been found, and it was becoming increasingly clear that none ever existed. Then the Iraq Survey Group issued one report on September 30, 2004, and then another in January 2005 that absolutely closed the book on the WMD issue (see The DIA and chemical weapons, and Search for WMD is officially over). Miller went to jail on July 6, 2005. From May 2003 to July 6, 2005, Miller's career and reputation took a serious beating. She was Exhibit 1 for how the media really blew it in the build up to the Iraq war. Her credibility was drastically diminished. Her career as a big-time journalist was in dire straits.

Enter Fitzgerald and his investigation. Suddenly, Miller has an opportunity to take the focus away from her crappy reporting AND to look like a hero. Her stand and subsequent jailing put the issue of source confidentiality/shield laws front and center, AND it put her front and center of the debate. There was no way anyone in the media was going to question her. Almost all of the media was going to support her because that would be in their best interest. She could reestablish her cred as a committed journalist AND do so without anyone every addressing her failure as a journalist concerning WMD.

In other words, Miller had every incentive in the world to make a public show of resistance against Fitzgerald and go to jail. As noted, she could have made the same deal and received the same assurances from Libby before she went to jail. I find this significant because of some of her statements upon her release:

I said to the court before I was jailed that I did not believe I was above the law and that I would therefore have to go to jail because of my principles. But once I satisfied those principles, I was prepared to testify.

*******

I was a journalist doing my job, protecting my source until my source freed me to perform my civic duty to testify.

(emphasis added). If she really felt she had a civic duty to testify, then why didn't she make the deal that was available AND that would have allowed her to uphold her principles before she went to jail instead of delaying a very important investigation for months?

The issues of confidential sources and media shield laws are very, very important. They need to discussed vigorously. However, no one should laud Judy Miller and use these issues as a reason to exonerate her in any way for the bullshit she committed regarding WMD. Until she fully admits her own failings, she does not deserve the benefit of any doubt.