10/02/2005 04:03 am ET Updated May 25, 2011

Judith Miller and Her Times

When Jack Shafer calls it "the epic collision of first principles from which Judith Miller has just slunk away," he gets Thursday"s news exactly right.

In the mystifying drama of Judith Miller and her Times, I am as clueless as the next person about what's really going down. But it seems to me we're watching just that-- the actions of Judy Miller's New York Times. It's kind of staggering, the way she has hijacked the institution by staging an "epic collision" between herself and the state.

When Chief U.S. District Judge Thomas F. Hogan ordered her to jail, he said Miller was wrong to think she was upholding some great principle of a free press. The source she "alleges she is protecting" had released her from her duty to confidentiality, Hogan said. He appears to have been right in that warning: your sacrifice doesn't say what you think it says.

"Tim Russert of NBC, Walter Pincus and Glenn Kessler of The Washington Post and Matthew Cooper of Time were all subpoenaed in the Valerie Plame leak investigation, wrote Howard Kurtz on July 13. "But only New York Times reporter Judith Miller is in jail today."

By choosing confrontation when she didn't have to, and by going to jail in circumstances that allowed for other, subtler options (good enough for her peers but not for her) Judy Miller has made a great newspaper's history for it. The case was taken all the way to the Supreme Court, after all. Her confinement ended because she suddenly made a practical decision to quit standing on principle. And that too--confusion between the epic and the expedient--now attaches itself to the reputation of the Times.

Indeed, Miller's confounding case has so handcuffed the editorial capacity of the Times that it couldn't manage the simple act of reporting the news that she had been freed at about 4 pm Thursday. (See Editor & Publisher.)

The Philadelphia Inquirer got a tip earlier in the day, confirmed it with officials at the jail that afternoon, and published the news about Miller's freedom at 6:40 pm. The Inquirer guys said they were surprised the Times wasn't reporting its own news. “We were checking their Web site," they said. "We thought they would put it up and they didn't." The Times did post its story around 8:45 pm that night (according to CJR Daily), but what does it mean when the simple act of breaking your own news becomes impossible for the Washington bureau?

"When asked Friday why the Times did not report the story for several hours after Miller's release, New York Times Washington Bureau Chief Philip Taubman declined comment," Editor & Publisher reported. No comment, huh? Judy Miller's Times is an institution that ties itself in knots. It can't speak clearly, or it contradicts itself. Instead of giving out information, it withholds. It can never tell the full story.

"Today, Sunday, there is not a single mention of Judy Miller in the entire New York Times (except a correction about a July 2003 Miller article on WMD in Iraq)," Arianna Huffington wrote. "Has the New York Times ceased journalistic operations?" It's a fair question.

The Nation's David Corn, Farhad Manjoo of Salon, and Steve Lovelady of CJR Daily all noticed that the story in the Times about Miller's release, which should benefit from having the most complete information, was exceedingly hard to understand. "If you want to avoid a headache, stick to the Post piece," Corn wrote at his weblog. Over-edited, over-lawyered, said Lovelady, formerly Managing Editor of the Inquirer. I found the same thing; I had to read the Times story three times to "get" it.

Or take this example: Murray Waas of the American Prospect reported new information back on August 6th: "Scooter Libby and Judy Miller met on July 8, 2003, two days after Joe Wilson published his column. And Patrick Fitzgerald is very interested." Waas asked the Times to comment:

In response to questions for this article, Catherine J. Mathis, a spokesperson for the Times, said, "We don't have any comment regarding Ms. Miller's whereabouts on July 8, 2003."

After Miller's release the Times got around to saying what it must have always known: "Ms. Miller met with Mr. Libby on July 8, 2003, and talked with him by telephone later that week, [sources] said." Notice how it affects what the New York Times, a great institution, can tell the public, and yet Judy's decision was hers: personal when she made it (her conditions weren't met), personal when she changed it (her conditions were met.) That's what I mean by Miller's Times.

I found revealing Arthur Sulzberger Jr.'s statement about her release.

As we have throughout this ordeal, we continue to support Judy Miller in the decision she has made.

Stop. Did you hear that? "The decision she has made." Okay, roll tape...

Judy has been unwavering in her commitment to protect the confidentiality of her source. We are very pleased that she has finally received a direct and uncoerced waiver, both by phone and in writing, releasing her from any claim of confidentiality and enabling her to testify.

You see Miller is the actor, and the results bring the Times along in her wake. By standing with Judy Miller the Times seeks to highlight for the nation the need to protect reporters from prosecutors. Sulzerberger's statement:

We continue to believe that a strong Federal Shield Law must be passed by Congress, so that similar injustices, which the laws of both New York and Washington, D.C. already prevent, are not suffered by other journalists.

"Similar injustices?" That's just more confusion. Because in an appearence on the PBS Newshour June 29, 2005, Sulzberger's Executive Editor, Bill Keller, said that no national shield law would have protected Miller from testifying about her sources in this case. Steve Chapman of the Chicago Tribune was one of the first journalists to publicly contest Miller's stand on principle, and he went on the air with Keller to talk about it:

STEVE CHAPMAN: I think there should be a federal shield law that would limit subpoenas to journalists to cases where the information being sought is critical to the investigation and there's no other way to get it, and if we had a law like that, it would protect 98 percent of the confidential sources that journalists use, and it would not protect Judith Miller, I'm afraid.

TERENCE SMITH: Do you agree it would not protect Judith Miller in this case?

BILL KELLER: I think that's correct. That's why I said we're talking about two separate things. One is the whole realm of what the law ought to provide in the way of protections or does provide, and the other is what happens when you run out of legal protection but you still feel like you have a moral obligation to stick by your promise?

Another reason a national shield law would not protect Miller is that any Federal bill imaginable would have national security exceptions, one of which is bound to be divulging the name of an intelligence agent. Since that is what happened in her case, her case would not be covered. A future Fitzgerald would have the right to compel her to testify.

"A law has even been written-- a bipartisan bill languishing in Congress that would protect this vital tool of a free press," said an Oct. 1 editorial in the Times. Sadly--and Judith Miller's Times is a sad tale all around--the editorial failed to mention that, according to the Executive Editor of the Times, the law would not have protected her use of the vital tool. "We hope the sight of Judith Miller finally gaining her freedom will help spur Congressional leaders to take this one simple action to keep the First Amendment's promise of a free press."

When Judith Miller had gotten out she composed a statement the Times released. "I went to jail to preserve the time-honored principle that a journalist must respect a promise not to reveal the identity of a confidential source," she explained. "I chose to take the consequences -- 85 days in prison -- rather than violate that promise. The principle was more important to uphold than my personal freedom."

The problem with Miller's stand on principle is that other Washington journalists who deal in secrets found a way to maintain their principles, and their reputation for reliability, without taking that stand. So there must be something else to it beyond being: woman of her word, reporter to the core. Dan Froomkin at the Washington Post site put it well. "Note to reporters," he wrote:

There is nothing intrinsically noble about keeping your sources' secrets. Your job, in fact, is to expose them. And if a very senior government official, after telling you something in confidence, then tells you that you don't have to keep it secret anymore, the proper response is "Hooray, now I can tell the world" -- not "Sorry, that's not good enough for me, I need that in triplicate."

Froomkin advises: "if you're going to go to jail invoking important, time-honored journalistic principles, make sure those principles really apply." Exactly. "The law presented Judy with a choice, said Keller in July. "She could betray her source and go free or she could go to jail." This is the epic collision Shafer spoke of.

But now we know she had a third choice: to seek a negotiated end to the stand off, which is what her new lawyer, Robert Bennett, eventually did, and also what Walter Pincus and Glenn Kessler of The Washington Post, to name two, earlier did.

Keller continues: "I think the choice she made is an honorable, principled, brave choice, and one that has been honored down the centuries in America." That was a reference to civil disobedience, which is how Miller and Keller saw her actions. "The right of civil disobedience is based on personal conscience," she said in a statement before she was led to jail. "It is fundamental to our system and it is honoured throughout our history."

Here, I believe, is the error the Times made. Civil disobedience succeeds when there is clarity in purpose, cogency in argument, and transparency in action. None of which has been apparent in Judy Miller's epic. As Keller said in July about the prosecution: "This has been a kind of series of black holes, and I-- I honestly don't know what is at the heart of this case any more."

I'm afraid the answer is: Judy Miller.
Jay Rosen teaches journalism at New York University. His weblog is PressThink.