Wavering on Waivers

09/30/2005 09:12 pm ET | Updated May 25, 2011

I bet Judy Miller and her supporters at the Times wish they’d never discussed waivers in public before. But unfortunately for them they have. And just about everything they’ve said contradicts what they are saying today.

Here is Bill Safire, an unabashed Miller supporter, testifying in front of a Senate hearing on a federal shield law for reporters, on the subject of waivers:

I don't have to pussyfoot about this, because it's a matter of principle. I think waivers of confidentiality are a sham, a snare and a delusion.

When you put somebody's head to a gun or a gun to a head and say, "Would you sign this waiver of confidentiality so we can force a reporter to talk about what you said?" you are coercing him in the most forceful way. You are saying, "You'll lose your job or you'll become a target of grand jury investigation unless you sign this waiver."

I think, from the reporter's point of view, from the journalist's point of view, when presented with a waiver, even with my name on it, saying, "OK, Safire, you can tell them what I said," my reaction should be, "You tell them what you said. Get up and say, 'I met with this man and I told him this.'" I then can say, "Yes, that's true," or, "Nope, he's got that one wrong."

But the notion of putting the onus on the reporter, that he must reveal what happened because a source has been coerced, forced into asking him to talk, I think is a perversion of justice.

So what is Mr. Safire thinking now that Judy has gone along with the sham, the snare and the delusion? Can somebody ask him please?

Next up is Arthur Sulzberger, talking to Matt Lauer on the Today show on October 8, 2004:

At the heart of this… we believe that waiver was coercive. They were told ‘Sign it or lose your job.’ To me, and to Judy and, I think, to most of us, that’s not legitimate.

Judy was on that same Today show and rode in on her high horse to join her boss in dismissing waivers of confidentiality. Here’s what she told Lauer:

I think the waiver presents a real problem to us. I mean, supposing your boss says, `You know, Matt, as--as a condition of working here, you will never be able to have a private conversation with a journalist. And if you want to work here, or you don't want to lose your job, you have to sign that agreement.' I mean, I think that that would make our job, as journalists, very, very difficult.

They all seem awfully concerned about the coercive nature of waivers. So what happened to make it less of a concern? If they were so worried that Libby had signed waivers to save his job, what led them to believe that the “personal, explicit, voluntary waiver” he gave over the phone was done for any other reason? After all, according to Safire, Sulzberger, and Miller, the question isn’t whether the waiver is “voluntary”. It’s who is compelling the source to give the “voluntary” waiver?

If the gun was at Libby’s head when he signed the original waiver over a year ago, why were Miller and the Times so willing to accept that the gun was no longer loaded? He still wants to keep his job, doesn’t he?

Proclamations of principle are like unwanted pets. Even after you dump them on the side of the road, they have a way of finding their way back home and biting you on the butt.