She went to jail, but for what?

Published October 1, 2005

It was the mystery many of us who care about journalism had waited 85 days to see answered.

Judith Miller, the New York Times reporter jailed for refusing to tell a federal prosecutor what she knew about efforts to reveal the identity of CIA operative Valerie Plame, faced reporters Friday after brokering a deal to win her freedom and testify before a grand jury.

News outlets were already reporting she had secured permission personally from her confidential source, vice presidential chief of staff I. Lewis "Scooter" Libby, to speak about their conversations on the issue.

But viewers watching Miller's Friday news conference were only left with more questions, following her refusal to explain why she sat in jail for nearly three months before obtaining a release Libby had granted to another reporter over a year ago. (Miller actually referred the question to her lawyer, who did not comment.)

Those of us who value journalists' ability to keep sources confidential are left to wonder: Did we lose an important battle in an important court over this?

"Having sought as much support as they did from the journalism community ... (the lack of explanation now) is troubling," said Jane Kirtley, a professor of media ethics and law at the University of Minnesota. "It's not as if they have to provide a full explanation. But they should at least explain why they can't explain."

As other reporters cut deals with prosecutors investigating the disclosure of Plame's name, Miller - who never wrote a story about the matter - is the only one who publicly refused to testify, prompting Chief U.S. District Judge Thomas F. Hogan to jail her July 6 for contempt of court. The judge's move, and the Supreme Court's decision not to hear an appeal, confirmed a 1972 decision that reporters don't have special rights to ignore a good faith subpoena in criminal cases - a crucial loss for journalists.

Time reporter Matt Cooper, who also faced jail time for declining to reveal one of his sources in the story, said he called Libby in the summer of 2004 and obtained a personal waiver then. Libby's attorneys have said a similar waiver also was available to Miller.

So was Miller simply playing the journalistic martyr, when she could have resolved this earlier and ethically?

Lucy Dalglish, executive director of the Reporter's Committee for Freedom of the Press, doesn't think so. "Based on what I know ... I don't think anyone should assume Matt and Judy were in the same situation," said Dalglish, a longtime supporter of Miller's who would not reveal her confidential source. "We cannot have a situation where the media is perceived as turning over confidential information whenever someone asks."

Backed by attorney Robert Bennett and New York Times publisher Arthur Sulzberger Jr., Miller said Friday she hopes her actions will spur work on a federal shield law to help journalists protect their sources' identities.

But Kirtley said the circumstances of Miller's case - she was shielding a White House official discussing controversial information about the wife of a vocal Bush administration critic, former ambassador Joseph Wilson - make such a law unlikely.

Instead of protecting a whistle-blower, Miller and other journalists in this case seemed to be protecting those trying to intimidate Wilson, which has dampened the public support necessary to drive legislation, she said.

"The public is ambivalent because the facts of the case are so weird," Kirtley added. "We never had the public outrage that the jailing of a New York Times journalist should have engendered."

Craig Crawford, a Washington D.C.-based columnist for Congressional Quarterly magazine (an affiliate of the St. Petersburg Times ) said the lack of public outcry in the Miller case only demonstrates how people no longer see the press as their champions in holding powerful institutions accountable.

"I think the whole notion of a free press which acts as a watchdog on government is in tatters," said Crawford, who has written a book, Attack the Media , on how politicians have turned the public against journalists to invalidate their work. "The public doesn't see the media as their friend or representative ... just another interest group out to take advantage of the little guy."

Here's hoping Miller and columnist Robert Novak - who actually wrote the July 2003 column which named Plame, but avoided jail time - eventually disclose the details of their roles here. Otherwise, the public may assume this issue is little more than a food fight between two similarly unworthy institutions.