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Protecting a secret

Why even under the threat of imprisonment, New York Times continues to protect her source

During the 2003 State of the Union address, President Bush said, “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” The president was making the case that Iraq was trying to develop nuclear weapons by obtaining uranium from Niger, a claim that was disputed a few months later by former ambassador Joseph Wilson in a “New York Times” op-ed piece. 

Soon after, the name of Wilson's wife, CIA agent Valerie Plame, was leaked by confidential sources to syndicated columnist Robert Novak, who printed it.  Other reporters were also tipped off.  But revealing the identity of an undercover agent is a federal crime, and now the Justice Department is investigating.

Last Friday, President Bush's top political adviser, Karl Rove, testified before a federal grand jury, and at least five reporters have also been subpoenaed to testify, including Judith Miller of “The New York Times.”  Miller is refusing to reveal her sources, and last week a federal judge found her in contempt, threatening her with 18 months in jail.  She's free on bond pending an appeal.

MSNBC's Deborah Norville spoke with Miller and her lawyer, Floyd Abrams, about her decision not to reveal her sources. Below is a transcript of the interview:

DEBORAH NORVILLE, HOST: Ms. Miller, is going to jail worth it for your job?


really means protecting the confidentiality of my sources, as does yours, Deborah, and as does every journalist.  And if I'm not willing to do this -obviously, I don't want to do this, but if I'm not willing to, I'd be kind of betraying my profession and my sense of ethics.  So I have to be willing to do it.

NORVILLE:  And yet, it's not clear that Ms. Miller even knows anything about what the government wants to know about.  She never wrote a story about Valerie Plame and the CIA identity and all of that.  There's been no byline with her name about this story.

FLOYD ABRAMS, FIRST AMENDMENT LAWYER:  That's right.  She never wrote a story.  And yet, here she is now on the lip of jail, having been ordered jailed.  And unless we get this reversed by the court of appeals, I mean, that's what would happen, notwithstanding that she never wrote a story about this at all.

NORVILLE:  On the other hand, Matt Cooper, whom you also represent, from “Time” magazine, did write a story.  The story he wrote seemed to be on the government's side.  It denounced whoever had done this leak and took them to task.  He, too, is facing up to 18 months in prison.

ABRAMS:  Right.  Well, when you say “on the government's side,” he wrote a story exposing the fact that people in the government had leaked this information.  Now the government, wearing a different suit, is basically trying to jail any reporter who won't cooperate by revealing her or his source.

NORVILLE:  And he has, however, spoken.  There have been some reporters who have spoken to the federal prosecutors, among them, Tim Russert from NBC News who were given permission by at least one of their sources, Scooter Libby, who works for the vice president's office, to have that conversation.

ABRAMS:  Well, Matt Cooper was given permission by Scooter Libby, and on that basis, and he agreed to answer questions only about him.  And then when he did so, we got a new subpoena.  And the new subpoena, in effect, said, “Well, thanks a lot.  Now we want to know about everyone in the world except Scooter Libby.” So you know, nothing good happened from having tried to avoid this conflict between journalists and the courts.  I mean, this is not a situation where Judy Miller or Matt Cooper has been looking for a chance to make new law.  They just want to be able to go about their lives and to gather information and report it to the public.

NORVILLE:  Ms. Miller, here's the thing that I don't understand.  If you never wrote a story about this—it has been reported that you did do some investigating on this issue, as I guess every national journalist was— once it hit the news when Bob Novak did his piece in July of 2003.  But if you never reported anything about it, how does the government suspect that you know anything?

MILLER:  I think I'm going to let my lawyer handle that question.

NORVILLE:  Because that's something they could potentially ask you about, if you ever ended up in front of them?

ABRAMS:  No, it's not that.  It's that the only way we have any idea what the answer to your question is, is by sort of surmising, trying to guess how in the world could the government have gotten her name because, as you say, she never wrote a story.  The only thing that makes sense is that people who have testified, people who work in the government, mentioned, “I spoke to Judy Miller, as well as, you know, blank, blank, blank.” That's the only thing I can think of.  It certainly is not Judy calling up the prosecutor and saying, “I sure would like to testify.”

NORVILLE:  The government says that it can compel Ms. Miller's testimony and Mr. Cooper and anyone else that may end up in this thing because of the Supreme Court decision that came down in 1972.  It's called Branzburg v. Hayes.  And that decision says, in part, “The 1st Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation.”

There is a criminal investigation going on.  Ms. Miller, why shouldn't a reporter have to adhere to the same standards that every other citizen in this country does?

MILLER:  I think Floyd can address this better… there are categories of citizens who do not have to appear before grand juries and do not have to violate their pledges of confidentiality.  Think of lawyers, for example, or think of priests or...

NORVILLE:  Husband and wife.

MILLER:  ... husbands and wives.  There are whole groups of people who have been given some special protection by the courts.  Our argument is that because we have a First Amendment obligation and responsibility, that we too, should find ourselves in that category.  And in fact, 31 states and the District of Columbia have all passed shield laws that give journalists some special protection.  And what we're very interested in getting is a federal law that would give us the same kind of protection that I'm afforded in states and in the District of Columbia.

NORVILLE:  Basically, the shield law says, “Anybody engaged in press activities, whether it's radio, TV, magazine of general circulation, shall be required to disclose the source of any information in a legal proceeding”—shall not be required to do that—basically, it says if you live in this state, there's certain things, as a reporter, we cannot compel you to do.

But frankly, Mr. Abrams, a lot of people think that the press is not deserving of this special protection, and while they may think Ms. Miller is a fine person and a great worker.  This is a bigger issue than you personally.

ABRAMS:  Well, it is a bigger issue than Judy Miller personally, as she well knows.  But the bigger issue is whether the public can still get the information that Judy Miller and all the other journalists who gather it for the purpose of reporting it to the public try to do.  I mean, that's what journalists at their best do.  There's been so much written, and some of it has been justified, about journalists who failed in their responsibility to the public.

Here are journalists trying to gather information about the workings of government itself, one of the things where sometimes the only way you can gather the information is by confidential sources giving it to you.  And the price tag for them doing that is now, apparently, to have to risk jail and, perhaps, if things go badly, to go to jail.

NORVILLE:  What about Bob Novak?  He opened this can of worms. He first reported this story in July—July 13 of 2003.  Do we know if he's had to testify?

ABRAMS:  That is, to use a cliché, the 600-pound elephant in the room.  No one has any idea.  No one has any idea if he has testified, if he has claimed the 5th Amendment, if the prosecutor is waiting to ask him or force him to testify later.  No one knows, and Mr. Novak isn't answering questions about what he's doing.

NORVILLE:  Help people understand at home, Ms. Miller, why it's so important to you that you really would go to jail for as much as 18 months, according to the federal prosecutor, so that they can read your stories in “The New York Times.”

MILLER:  My business, our business, depends on people who have a grievance, who have a story to tell, coming to us, knowing that they do so at perhaps great peril, perhaps losing their jobs, and knowing that we will safeguard their confidentiality.  If there's no other way they can give us the information, if they can't be on the record, they can speak to us and know that we will protect them.

If I can't make that pledge to them and if they don't believe me, they won't come, and the public may never know something the public may need to know.

That's really at the heart of what we do as journalists.  And if I can't do that, I might as well, you know, take down my shingle.

NORVILLE:  And Mr. Abrams, you think it's potential that this case could go as high as the Supreme Court to get a final decision?

ABRAMS:  I think it really is possible.  You know, you never know what cases the Supreme Court will take.  But the case raises a very important issue.  Since that Branzburg case that you mentioned, the lower courts have gone all over the place with different sorts of rulings and different direction, often protecting the press, often not.

John Chancellor of NBC once was looking to the future.  He worried about a time when all there would be on television is what he called “non-fiction, non-news.”

NORVILLE:  Ooh!  Sounds like reality TV, doesn't it?



NORVILLE:  Yikes!  The future may be here.  Floyd Abrams, thanks for being with us.  Judith Miller, good luck to you.  Keep us posted on what happens.