GADFLY 

Judy, Judy, Judy

This week, journalism's self-appointed poster child for the sanctity of confidential sources has been sprung from the hoosegow. Judith Miller, famous (or infamous) New York Times reporter (and expert on non-existent WMD), in exchange for agreeing to testify before the grand jury investigating the CIA leak (a/k/a “Plamegate”), was released from her duties in the prison laundry at the Alexandria Detention Center, though, without the souvenir piece of ankle jewelry Martha Stewart got to take with her when she left prison. It now appears that when the other shoe falls in the Plame investigation, it may well be a high heel.

So who sprang her? Of her many VIP visitors, it wasn't John Bolton (whatever sense his visit to her---largely unreported by the MSM---makes), or even Bob Dole (who also wrote an op/ed piece supporting her in---surprise, surprise---the New York Times). No, it was Scooter (what kind of name is that for a grown man, anyway) Libby, Vice President Cheney's chief of staff who turned the key on Miller's cell door. Libby apparently, and finally, satisfied Miller that his waiver of confidentiality was actually voluntary. Of course, the prospect that Miller's imprisonment for civil contempt was threatening to be turned into criminal contempt, with the possibility of measuring her sojourn in the slam in years instead of weeks, probably had nothing to do with her newly found belief in Libby's forthcomingness.

And so, we're left to wonder why (a) Libby's waiver this time was any more satisfactory to Miller than the one, according to his lawyer, he gave her a year ago; (b) why Miller went to jail simply because she didn't think Libby's permission to reveal him as her source was “voluntary,” and (c) if Libby knew Miller needed proof of the bona fides of his releasing her from the bounds of confidentiality, other than what he had already given her, why he waited for her to languish in jail for three months before giving it to her. The answer to all three questions is the same: this latest episode in the Judy chronicles has nothing to do with what (or when) Libby told, or didn't tell, Miller about revealing his identity; it's all about Judy, the master manipulator.

Let's refresh our Iraq/Katrina/Rita/Delay-weary minds about this story which disappeared from the front pages of the nation's newspapers (most notably, the New York Times). First, as to why Miller went to jail in the first place. There's been a lot of distortion by the MSM, maybe because they're ambivalent about their feelings towards her, about why she ended up in an Alexandria, Virginia jail. Boiled down to its basics, Miller went to jail because she refused to comply with a grand jury subpoena requiring her to testify about the source of information who may have revealed the employment of former ambassador Joseph Wilson's wife, Valerie Plame, as a CIA operative. A federal judge found her in civil contempt for that refusal, a finding that was appealed by Miller (read: the NYT) all the way to the Supreme Court. That occurred, you'll recall, following the generous helping of egg Wilson spattered on the administration's face by loudly and publicly (i.e., in the New York Times) debunking one of the linchpins in the justification for the war in Iraq, namely that Iraq was trying to get weapons grade uranium from Niger.

The subpoena was issued in the investigation being conducted by a special prosecutor, Patrick Fitzgerald (appointed by George Bush after the holier-than-thou attorney general, John Ashcroft, was forced to disqualify himself from the investigation), into whether any laws were violated by the revelation of Plame's identity. The Miller subpoena was one of many issued to journalists, including Matthew Cooper of Time Magazine, as a result of the story that was written by Robert Novak outing Ms. Plame.

Second, let's deal with the biggest “poor Judy” misconception. Virtually every story in the MSM, whether print or broadcast, somewhere in the story has used a variation on the following words: “...even though she never wrote a story about Plame.” The premise of Miller's defenders is that she is less blameworthy (and therefore more of an innocent victim) because she didn't write the same story Novak, or even Matthew Cooper did (and we all saw how quickly he folded his hand in the special prosecutor's poker game), naming Plame as a CIA operative. What her defenders and apologists either know, or choose to overlook, is that the purpose of Miller's subpoena was to determine whether anyone had illegally disclosed Plame's identity to her, a crime which had nothing to do with whether or not Miller used the information to publish a story about it.

One of the potential crimes being investigated by the grand jury (and I say one because there are several) is a violation of the Intelligence Identities Protection Act of 1982) which makes the mere disclosure of this classified information (the identity of a covert CIA operative) to someone not authorized to receive it (e.g., Miller) a major no-no. The purpose of the law is to criminalize the disclosure of this kind of classified information, and therefore to deter it, because without a leaker, there can be no leak, published or not, just like there can be no leak without a “leakee.” There are other potential crimes implicated in the investigation, with a lower threshold of proof than the esoteric “identities” law, and we all know that the government frequently goes after someone for one thing, but gets them for another (e.g., Al Capone, the tax evader).

The moment Libby told Miller (assuming he did), “Pssst, Wilson's wife's a CIA operative,” all the crime was arguably perpetrated, without regard to whether or not she wrote what she learned. And, of course, it was Miller's willingness to be the recipient of the information, and her history of being the administration's scribe for its prior revelations, that motivated Libby to conscript her in the first place. Let's put it this way, Libby wasn't likely to choose Seymour Hersh or Frank Rich as his accomplices for this piece of espionage.

Who better to enlist in the effort to discredit Joseph Wilson than someone who had amply demonstrated her willingness to be the administration's shill in the run-up to the war? “Baghdad Judy” had already paid her dues to the administration, dutifully purveying the trumped-up information about WMD's she was fed by, among others, the likes of the thoroughly discredited Ahmed Chalabi. And so, when the now-outed Libby passed on the information about Plame's status at the CIA, he did it with the assured knowledge that she could be trusted to spread the word, by publication or otherwise, and thus to perfect the administration's attempt to slime Wilson for his treasonous act. We may never know why Miller didn't publish a piece about Plame's identity, and we'll have to wait for the inevitable book to find out, but we can be pretty certain, based on her history, that it wasn't because she had an ethics epiphany.

And, of course, we know that Miller's act of conscientious objection to revealing her source was far from a high-minded gesture to journalistic principles. She wasn't protecting a whistle blower by refusing to reveal his identity. She was protecting someone who was arguably a felon, and with whom she was at risk of being indicted herself for conspiring with. She had no more right to protect Libby's identity than if he had called her up to have her witness him murdering Plame (a consequence of his leak not outside the realm of possibility, given the history of what happens to covert agents whose cover is blown). There simply is no journalistic privilege to be a witness to, or the foil for, the commission of a crime; never has been, and never will be, no matter what shield law Congress may pass, and Miller knew that. So, in fact, did her lawyers, who fought an uphill battle all the way, in the face of controlling Supreme Court precedent (remember all the talk about “stare decisis” during the recent Senate hearings on John Roberts?) which clearly undercut their position. There is little question that the judicial shenanigans engineered by Miller and her lawyers were an enormous waste of time and judicial resources, and unnecessarily impeded the special prosecutor's investigation for reasons having nothing to do with journalistic principles.

Now, as to the other questions of the moment. Why did Miller choose to go to jail, instead of revealing Libby as her source, when she had his waiver of confidentiality all along? As has been reported in connection with Miller's deal to be released, Libby's lawyer was surprised to find out that Libby's identity was the subject of Miller's stubborn (3 months in jail is a new high in stubbornness) refusal to name her source. Especially so since Libby's lawyer had previously assured Miller, in writing, that his client released her from her promise, and could have had Libby tell her that himself at any time (which he ultimately did). But that, apparently, wasn't good enough for Miller, who said she wasn't satisfied that Libby's release wasn’t “coerced.” By his own lawyer? Who is she kidding? Libby---coerced? The right hand man to the second most (some might say most) powerful elected official in the country, Dick Cheney, coerced? By what army? Scooter is a coercer, not a coercee.

What made Miller the judge of the voluntariness of Libby's prior release? What did she need to assure herself that he was waiving his confidentiality that she didn't already have? The answer is, nothing. Miller knew damn well she had Libby's permission to reveal his identity, much the same as Cooper knew he had Karl Rove's. Miller decided, however, for herself, that martyrdom was what suited her, and that it was the best, and maybe the only, way to resuscitate her tarnished career. How better to have virtually the entire corps of American journalists converted from criticizing your role in the run-up to the war, to making you, albeit reluctantly, their hero? How better to turn the editorial board of the Times (Keller, Sulzberger et al.) from making you a goat for embarrassing them with the WMD stories, to rushing to your defense like white corpuscles to the site of an infection? Did you see that reverse perp walk Sulzberger did arm in arm with her from the courthouse where she testified to the grand jury?

How better to wrap yourself in the American flag (the one you've disgraced by being a cog in the wheel of war) than by making yourself the defender of “truth, justice and the American way,” the last bastion of the sanctity of the First Amendment, and righteous resister of just another one of those big, bad federal judges to boot? And best of all, how better to assure yourself of a big fat advance on a lucrative book deal? First Amendment, my butt! I don't know about you, but I can hardly wait for the chapter on Miller's life in the “big house.”

The speculation about the real motivation for Miller's willingness to go to jail rather than reveal her source(s) has centered around the possibility that she herself faced criminal charges for not only facilitating the leak regarding Wilson's wife, but for purveying it herself. After all, she was more than an audience for Chalabi's WMD performance, she was also his announcer. And, although we have some information about the terms of Miller's agreement with Fitzgerald to testify to the grand jury, we don't (and may never) know whether an undisclosed feature of that agreement was some sort of immunity from prosecution for revealing what she may have learned about Plame to others. That is not something her lawyers, Fitzgerald or the court will ever reveal, and the only way it may ever come out is if Miller ends up being a witness in any prosecutions that eventuate from Fitzgerald's investigation. The speculation is, however, not farfetched, given the annals of federal investigations and prosecutions, and given the doggedness of Miller's insistence on remaining mute.

So now that Miller has made herself a journalistic folk hero, and now that she's wasted the time of a grand jury and four courts testing a principle she herself couldn't have believed protected her source, maybe we can get on with the business of getting to the bottom of Plamegate. While Miller may have done her journalistic colleagues a favor, standing up for their ability to selectively thwart the public's right to know, she certainly hasn't done the country a favor delaying that right in the case of Joseph Wilson/Valerie Plame.

FINAL NOTE: The Plame investigation has been the fuse of indeterminate length in the bomb that threatens to explode in the face of the Bush administration, and will make all of the administration's other attempts at implosion (e.g., Iraq, Katrina, etc.) insignificant by comparison. If, as I believe will happen, indictments are returned by the Plame grand jury against high level officials in the Bush administration, coupled with the party in power's other woes (e.g., DeLay, Frist, etc.), and the fuse finally gets to the powder, who knows---the explosion might even be loud enough to awaken the sleeping giant otherwise known as the Democratic Party.

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