Monday, October 17, 2005

Times Report on Judith Miller: Key Moments, My Comments, and What the Blogs Say

Here are my initial annotations of the big report. Key passages and brief comments. (Do add your own.) Plus my eight paragraph summary of the case and its press think.

I give credit to the Times for running the story a few days after they felt the legal clearances were had, for giving readers a look inside at decision-making normally hidden, for airing uncomfortable facts—including internal tensions—and for explaining what happened as well as the editors felt they could. This was a very difficult piece of journalism to do. As language in conveyance of fact, it is superbly edited.

I have a small bit of news to break if you skip down to “After Matter.” My eight-graph view of the case and its mangled press think:

Maybe the biggest mistake the New York Times made was to turn decision-making for the newspaper over to Judith Miller and her “case.” This happened via the magic medium of a First Amendment struggle, the thing that makes the newspaper business more than just a business to the people prominent in it.

Miller’s defiance played to their images of Times greatness, and to their understanding of First Amendment virtue. She always described her case in the language of their principles. They heard their principles talking in the facts of the case. She could shape those facts, and so on.

But her second attorney saw it more clearly. “I don’t want to represent a principle,” Robert Bennett told her. “I want to represent Judy Miller.” He did that. The Times was the one left holding the principles.

Mostly they didn’t apply to a case that was bad on the facts, a loser on the law, quite likely to result in victory for the prosecutor, and quite possibly an ethical swamp or political sewer, since it was about using the press to discredit people without being named. All this would warn a prudent person away. It’s why other news organizations settled.

It never seems to have registered with Arthur Sulzberger, Jr.—Miller’s biggest supporter and the publisher of the newspaper—how different it is to fight for the right to keep things secret, as against the right to publish what had improperly been kept from us. By taking Miller’s secret-keeping “into” itself the Times took on more and more responsibilities not to speak, not to publish, not to report, not to inquire. All this is deadly for a newspaper, and the staff knew it. At the end the readers knew it and they were crying out. Even the armchair critics knew a thing or two.

So did Bill Keller, so did Jill Abramson. But there was nothing they could do. By the time they realized what Miller’s secrets had done to their people and their journalism, Judith Miller—by staging a First Amendment showdown she escaped from—had effectively hijacked the newspaper. Her principles were in the saddle, and rode the Times to disaster, while people of the Times watched. The newspaper never got its Robert Bennett.

And in the end her secret-keeping extended to stiffing the Times on its own story. The newspaper’s international First Amendment hero wouldn’t talk, share notes, or answer any tough questions. Her copy was late for the big weekend package; so late the report didn’t run in 100,000 papers run off for the bulldog edition.

The spookiest thing to me about her first person account was the suggestion that Judy Miller may have—today—security clearances that her bosses (and colleagues) do not have. This could be the reason her treatment is so singular. She said the prosecutor asked her if she still had special clearances when she met with Lewis Libby. She said she didn’t know. Does that sound good?

On to some key moments in the report, The Miller Case: From a Name on a Pad to Jail, and Back. My eye fell on these passages. I explain a little about why.

And when the prosecutor in the case asked her to explain how “Valerie Flame” appeared in the same notebook she used in interviewing Mr. Libby, Ms. Miller said she “didn’t think” she heard it from him. “I said I believed the information came from another source, whom I could not recall,” she wrote on Friday, recounting her testimony for an article that appears today….

Miller cannot recall where the name at the center of the case came from? Wowzer. Sure to be the center of controversy over the next week. Claiming memory loss about the most important fact in the story is weak. Very.

Miller actually subtracts from public knowledge in this part, a feat. She introduces into the narrative a new “source” who must have been around to plant the name on her, and then promptly tells us she cannot remember anything about him. So we know less if we believe her.

Mr. Sulzberger and the paper’s executive editor, Bill Keller, knew few details about Ms. Miller’s conversations with her confidential source other than his name. They did not review Ms. Miller’s notes. Mr. Keller said he learned about the “Valerie Flame” notation only this month. Mr. Sulzberger was told about it by Times reporters on Thursday.

Interviews show that the paper’s leadership, in taking what they considered to be a principled stand, ultimately left the major decisions in the case up to Ms. Miller, an intrepid reporter whom editors found hard to control.

“This car had her hand on the wheel because she was the one at risk,” Mr. Sulzberger said.

Like I said, it became Judy Miller’s newspaper. Her decision-making, I said on CNN, was driving the newspaper’s. Mr. Sulzberger is the publisher; the Times is a public company. Isn’t his hand supposed to be on the wheel for the newspaper as a public trust?

This car had her hand on the wheel… I know what he meant. It was her call on whether to “end” the case by testifying. But it was his call when the Times declared her case a First Amendment struggle and matter of high journalistic principle. Because the particular high principle invoked by Miller—protecting a reporter’s sources—in this case tied their hands for later stages of the fight their strategy brought on. They turned over the wheel to Judy Miller; her games of telepathy with Libby became the case “logic.”

Just ask yourself when you re-read the Times report, who was actually in charge of these events?

“We have everything to be proud of and nothing to apologize for,” Ms. Miller said in the interview Friday.

Ms. Miller seems incapable of self-doubt. Is this the person you want driving the car in a game of chicken with a federal prosecutor?

Asked what she regretted about The Times’s handling of the matter, Jill Abramson, a managing editor, said: “The entire thing.”…

Indeed.

In two interviews, 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

I called this The Hypothesis: “Judy Miller would not, in any material way, cooperate with the team of Times reporters.” (See Armchair Critic Speculates, Oct. 12.) Seems like she didn’t. What principle of confidentiality extends to “interactions with editors?” I am not aware of one the Times would uphold.

And how’s this for corporate candor? The Washington Post reported today: “Times spokeswoman Catherine Mathis said yesterday that Miller is now cooperating with fellow reporters on the story.” Odd definition of cooperating. (See “After Matter” for an update on it.)

This, I think, is what will finally sever Judy Miller from the Times: Ms. Miller generally would not discuss… Not forgivable in the newsroom’s moral code. Your colleagues are trying to finally tell the truth and get it right— and you won’t help? (Editor & Publisher’s Greg Mitchell agrees and calls for Miller to be fired.)

Ms. Miller said in an interview that she “made a strong recommendation to my editor” that a story be pursued. “I was told no,” she said. She would not identify the editor.

Ms. Abramson, the Washington bureau chief at the time, said Ms. Miller never made any such recommendation.

So she won’t even identify the editor, and Jill Abramson says no way, it never happened? Second wowzer.

In the fall of 2003, after The Washington Post reported that “two top White House officials disclosed Plame’s identity to at least six Washington journalists,” Philip Taubman, Ms. Abramson’s successor as Washington bureau chief, asked Ms. Miller and other Times reporters whether they were among the six. Ms. Miller denied it…

Was she lying? Times reporters will have vivid opinions on that. Lying to an editor is an immediate firing offense. It has to be, if the newsroom is going to function. One of many reasons Miller will not be returning to the newsroom.

The Times said it believes that attempts by prosecutors to force reporters to reveal confidential information must be resisted. Otherwise, it argues, the public would be deprived of important information about the government and other powerful institutions.

The fact that Ms. Miller’s judgment had been questioned in the past did not affect its stance. “The default position in a case like that is you support the reporter,” Mr. Keller said.

It was in these early days that Mr. Keller and Mr. Sulzberger learned Mr. Libby’s identity. Neither man asked Ms. Miller detailed questions about her conversations with Mr. Libby

A striking feature of the entire story: the men in charge didn’t know some of the key facts because they didn’t ask. Normally this would be bad. But it was okay not to know because Judy was making the calls. She knew.

Mr. Abrams told Ms. Miller and the group that Mr. Tate said she was free to testify. Mr. Abrams said Mr. Tate also passed along some information about Mr. Libby’s grand jury testimony: that he had not told Ms. Miller the name or undercover status of Mr. Wilson’s wife.

The most confusing part of the article is this. From what it says, I can see no reason Abrams or the Times had for not accepting Tate’s “she was free to testify,” except Miller’s subjective feeling about it, and the fact that she didn’t get the call she felt she would get.

“Judy believed Libby was afraid of her testimony,” Mr. Keller said, noting that he did not know the basis for the fear. “She thought Libby had reason to be afraid of her testimony.”

Ms. Miller and the paper decided at that point not to pursue additional negotiations with Mr. Tate.

The two sides did not talk for a year.

Amazing, especially: he did not know the basis for the fear. This is what the Times staff was afraid of. Had the paper—and the newsroom bosses—taken too great a risk? Maybe Keller didn’t know things he would have to know to guard against it.

Asked in the interview whether he had any regrets about the editorials, given the outcome of the case, Mr. Sulzberger said no.

“I felt strongly that, one, Judy deserved the support of the paper in this cause - and the editorial page is the right place for such support, not the news pages,” Mr. Sulzberger said. “And secondly, that this issue of a federal shield law is really important to the nation.”

As I have written, it is sad to me that this stance is repeated, and occupied as some kind of high ground, when it has been admitted by Keller that Miller’s case would not have been covered by a national shield law. How can she be a symbol of it?

And when Sulzberger says “the editorial page is the right place for such support, not the news pages…” I must say I draw a blank. The news pages weren’t supporting Miller? Where did he get that? The news pages of the New York Times were edited for many months under the principle: don’t report anything that would anger the prosecutor or affect Miller’s case. That’s “support.” And the Times report documents this, including the stories that weren’t published and the reporters who did them, and the discouraging “message” the Washington bureau took from it, and so on. If Sulzberger believes the news pages didn’t support Miller, that’s alarming.

A few weeks later on Capitol Hill, in November 2004, Ms. Miller bumped into Robert S. Bennett, the prominent Washington criminal lawyer who represented President Bill Clinton during the Monica Lewinsky scandal and who is known for his blunt style and deal-making skills.

Ms. Miller recalled Mr. Bennett saying while he signed on to her case: “I don’t want to represent a principle. I want to represent Judy Miller.”

Three points:

  • With his “Judy you need someone to represent you,” Bennett had a clear-eyed view of the case, easier because he was coming to it later.
  • Who on the Times side said, “I’m not representing a principle, I have to represent the New York Times?”
  • The Times story never explains why Miller switched lawyers or added a criminal defense attorney. (See Mark Schmitt on this.)

How strange:

Every day, she checked outdated copies of The Times for a news article about her case. Most days she was disappointed.

She didn’t know why there weren’t any news articles about her case? By their own account, the editors were holding back in deference to her.

Finally, it says so much about this case, about the information underworld of confidential sources, how little the Times own rules mattered to her, and how far gone Miller herself is when, in her account accompanying the Times article, she says:

Mr. Fitzgerald asked about a notation I made on the first page of my notes about this July 8 meeting, “Former Hill staffer.”

My recollection, I told him, was that Mr. Libby wanted to modify our prior understanding that I would attribute information from him to a “senior administration official.” When the subject turned to Mr. Wilson, Mr. Libby requested that he be identified only as a “former Hill staffer.” I agreed to the new ground rules because I knew that Mr. Libby had once worked on Capitol Hill.

Telling. (Let Josh Marshall explain why.) The new description for Libby is wholly misleading to readers—amounting to a lie, a misdirection play—but Miller is fine with it because it’s technically true.

http://journalism.nyu.edu/pubzone/weblogs/pressthink/2005/10/15/mlr_act.html

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