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Reporter freed, but case isn't closed

October 01, 2005|TIM RUTTEN

THE biggest and bloodiest conflict ever fought in this hemisphere occurred when two groups of Americans -- the Army of the Potomac and the Army of Northern Virginia -- blundered into each other in a Pennsylvania crossroads called Gettysburg and found themselves locked in mortal struggle on ground neither side would have chosen.

It's a mordant recollection to entertain on what ought to be a celebratory morning.

After all, New York Times reporter Judith Miller is free after spending 85 days unjustly -- though, unfortunately, not illegally -- behind bars for refusing to identity a confidential source before a federal grand jury. Her jailing at the behest of special prosecutor Patrick J. Fitzgerald was an affront to decency and something that should outrage every American who believes that a free and independent press plays an indispensable role in vindicating the people's 1st Amendment rights.

This is especially true since Miller never wrote a story about the issue Fitzgerald ostensibly is investigating -- the question of whether government officials working out of the White House broke the law two years ago by revealing illegally that Valerie Plame was a covert agent of the CIA. That revelation -- first printed in a July 2003 syndicated column by Robert Novak -- followed publication in the New York Times of an op-ed piece by Plame's husband, former U.S. Ambassador Joseph C. Wilson IV. In that article, the ex-diplomat charged that the conclusions he had drawn from a CIA-sponsored fact-finding trip to the sub-Saharan country of Niger contradicted allegations President Bush made in an address to Congress concerning Iraq's purported attempt to obtain yellow-cake uranium from Niger. The president's contention was central to the case he then was making for a preemptive attack on Iraq, whose dictator, Saddam Hussein, supposedly was attempting to build weapons of mass destruction.

In the days that followed publication of Wilson's comments, various administration officials -- including Vice President Dick Cheney's chief of staff, I. Lewis "Scooter" Libby, and presidential political advisor Karl Rove -- apparently told a number of reporters that Wilson had been put up to his trip by the CIA, where his wife worked. Whether Plame actually was named remains unknown.

Miller did conduct two interviews touching on the Plame-Wilson connection, but since she -- unlike four other journalists known to have given information to Fitzgerald -- never actually wrote a story, she essentially was subpoenaed and jailed for the mere act of asking questions and, then, refusing to betray her sources. It is hard to imagine a more fundamental or threatening intrusion into a reporter's efforts to fulfill her public obligations.

So why isn't her release an unambiguously satisfying event?

In part it's because it was obtained by striking a deal with the prosecutor. It's also because on Friday, Miller did testify for several hours before a closed grand jury. It's because too little currently is known about what the provisions of her deal with Fitzgerald were -- and what is known raises additional questions.

Miller and the Times' publisher, Arthur Sulzberger Jr., and executive editor, Bill Keller, said that she became free to testify when her source, whom the paper identified as Libby, personally waived any claim of confidentiality directly to her. But Libby made a broad or blanket waiver of any such claim in writing more than a year ago.

Now, there are good reasons to be suspicious of such blanket waivers. Those were convincingly expressed Friday by Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, in an online question-and-answer session hosted by the Washington Post: "One of the more disturbing aspects of the reporters' privilege cases that have surfaced in the last couple of years is the insidious growth of 'confidentiality waivers.' Here's how they work: A government employee has valuable information about government malfeasance. Fearing repercussions within her agency, the employee seeks out a reporter in the hopes that once the public knows what's going on, the illegal or reprehensible behavior might end. Once in the spotlight, the government agency starts hunting for the leaker. An investigation is launched and someone in the agency's office of the general counsel prepares 'waivers' for all employees to sign. The waivers say that you hereby release any reporter who ever made a promise of confidentiality to you from the promise.

"As a government employee, you probably have a choice: sign the waiver or lose your job. The agency (or prosecutor) then goes to the reporter and says, 'You no longer have an obligation to your source. Talk to us or go to jail.' "

Dalglish concluded that "these waivers are by their very nature coercive. Journalists are wise to ignore them."

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