Saturday, October 15, 2005


Well, the New York Times has finally published the inside story of Judith Miller and her jailhouse odyssey, kind of, sort of, possibly. The story of the Plamegate/Rovegate/Millergate/treasongate/Wilsongate affair and Miller's part in it leaves me as mystified as before. In a report which seems to treat Miller as an outsider rather than as an employee of the NYT - the two interviews with her were conducted by telephone and she refused to allow a review of her notes - the newspaper tells us that Miller's notebook contains the notation "Judith Flame", although Miller says that the notation was in a different section of the notebook than that which contained the notes of her conversation with Lewis Libby. Miller says that she told the grand jury and prosecutor Patrick Fitzgerald that she could not recall who gave her or when she was given the name nor why she misspelled it nor even when she wrote it. In yet another section of her notebook appears the notation "Victoria Wilson." Miller said she told the grand jury that by the time this notation appeared she had talked to several other administration officials about Joseph Wilson's wife but she could not recall who or when. Either Miller has poor hearing, poor spelling, or Libby et al mumble a lot.

Editor and Publisher calls the NYT report "devastating" but fails to point out anything in it that seems very devastating to me. Possibly one devastating part of the report is the claim that neither the NYT's publisher, Arthur Sulzberger, nor the NYT's executive editor, Bill Keller, ever reviewed Miller's notes in spite of spending millions of dollars in legal fees and placing the reputation of the NYT solidly behind her. Keller did not know of the "Flame" notation until early this month and Sulzberger did not know until informed by his reporters on Thursday. And this is only devastating in that it shows that the Times upper management seems, or seemed, willing to gamble a hell of a lot on very little information.

The Times' article tells us that the newsroom was upset at the way the Times was handling the affair. Thank you, but we already knew that. The report also tells us that Miller was not the most well liked reporter in the newsroom, but we already knew that. The article tells us that she was difficult for her editors to control, but we already knew that. The article tells us that critics of the Times accused the newspaper of protecting an "administration campaign intended to squelch dissent," not a whistleblower. We already knew that.

What Judith Miller and the Times have been protecting is access, nothing more and nothing less. I think that if a reporter is willing to go to jail to protect access, then more power to him/her. Robert Novak wasn't, Walter Pincus wasn't, Matthew Cooper wasn't - and Time magazine wasn't prepared to back him up if he was - and Tim Russert wasn't.

If there is anything new in the article besides the Flame-throwing, it's that Miller's stay in jail seems to have all been a big misunderstanding between herself, Lewis Libby and half a dozen lawyers or so as well as the prosecutor, Fitzgerald. Or so everyone says. Libby and his lawyer, Joseph Tate, say they are "mystified" as to why Miller, her lawyer, Robert Bennett, the NYT and its lawyers, Floyd Abrams as well as George Freeman would not accept Libby's waiver of confidentiality nor Tate's assurances that Libby was really, really serious. In fact, the message that Abrams as well as Bennett say they got from conversations with Tate was that Libby did not want Miller to testify. Tate calls these assertions, "outrageous." Even prosecutor Fitzgerald wrote a letter to Miller lawyer Bennett wondering if there had been a misunderstanding between Miller and Libby - I wonder what gave Fitzgerald that idea.

The Lawyers - maybe the most amusing thing about this entire mess has been the interplay amongst the lawyers. When it first blew up, by means of a Fitzgerald subpoena of Miller, the Times hired Floyd Abrams to represent both the newspaper and Miller. Later, Miller, and very wisely so, contracted Robert Bennett to represent her personally. Joseph Tate represents Lewis Libby. George Freeman represents the NYT. We'll call them NYT lawyer Abrams, NYT lawyer Freeman, Miller lawyer Bennett and Libby lawyer Tate.

NYT lawyer Abrams said he spoke to Libby lawyer Tate last year about Libby's waiver of confidentiality. NYT lawyer Abrams says that Libby lawyer Tate relayed some of Libby's grand jury testimony to him, to the effect that Libby had testified that he had not given Plame's name to Miller and said, "Don't go there, or, we don't want you there," which, according to Miller, made her and NYT lawyer Abrams believe that Libby didn't want her to testify. Now Libby lawyer Tate is outraged, denying he ever said those things and that the Miller/Abrams/NYT interpretation of their conversation is "outrageous." Furthermore, Libby lawyer Tate wrote to NYT lawyer Abrams recently saying, "You never told me that your client did not accept my representation of voluntariness or that she wanted to speak personally to my client." NYT lawyer Abrams does not dispute that, according to the NYT.

When Miller was advised by Miller lawyer Bennett that prosecutor Fitzgerald could empanel another grand jury and she might have to stay in jail another 18 months, it began to seem prudent to both Miller and Miller lawyer Bennett that further conversations with Libby and Libby lawyer Tate might be in order. These conversations resulted in a two page letter from Libby to Miller as well as a 10 minute phone conversation between the two, monitored by a whole slew of lawyers on both ends of the line. After this conversation, Miller left jail and testified - twice, because of the discovery by prosecutor Fitzgerald of a second set of notes of which he was previously unaware.

When Miller lawyer Bennett first began to broach the subject of further contact with Libby and Libby lawyer Tate, NYT lawyer Abrams and NYT lawyer Freeman objected, saying that people would claim that the newspaper and Miller had "caved." Well, that's easy for them to say. They had not been in confinement staring out of a narrow slit in the wall at a lone maple tree and sleeping on two thin pads on a concrete platform for 85 days, going on 500 more, give or take.

Then, in the runup last week to the interviews by Miller for this NYT article, NYT lawyer Freeman wrote out a 4 page "script" of what Miller was to say, enraging both Miller and Miller lawyer Bennett. NYT lawyer Freeman denies that it was a script, innocently claiming it was a "narrative."


So what do we know about all this they said that she said and he said. Not much more than we did before. Judith Miller is one smart cookie ( she couldn't recall who told her what or when or why and her notes are, well, confusing), Lewis Libby is possibly in deep hockey pucky (it is pretty obvious that he said it, but is it provable?), the lawyers cannot agree on who said what to whom and nobody knows what prosecutor Fitzgerald is going to do because he ain't saying nothing to nobody.

The Flame-thrower Speaks
Now comes Judith Miller herself to tell us about her 4 hours before the grand jury. Her recollection of her testimony to the grand jury might put Libby even more squarely in the crosshairs. Not so much about what she testified - again, lots of not remembering who, when and why - but because of Fitzgerald's questions. It sounds like Fitzgerald is trying to tighten a noose around Libby's neck but that Miller gave him very little help.

Fitzgerald asked her several times about classified information passed to her from Libby. He also showed her some documents and asked if she could identify them. Miller had received security clearance from the Pentagon when she had been embedded with the WMD search teams in Iraq. She told the grand jury that Libby might have believed she still had that clearance and she herself did not know for sure. She could not identify any of the documents and she told Fitzgerald that Libby had never shown her any classified documents. She testified that Libby's main thrust in two face-to-face interviews and another by telephone was trying to convince her that VP Chaney knew nothing about Joseph Wilson's trip to Niger and that the CIA was orchestrating Wilson to cover their butts due to the faulty WMD intelligence.

If the WMD's were found, then the CIA could brag about their skill and derring-do. If the WMD's were not found, on the other hand, the CIA intended to pin the blame on the White House. That sounds about par for the course for the CIA. But then, we already knew that, too.

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