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"We Regret Nothing." Times Editorial Page Breaks Silence on Miller Case

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There was a break today in the silence that had fallen over the New York Times editorial page in the matter of Judith Miller. We who care about the case received a message from the editors. The message is: "We were right along, we're still right, not a thing has happened to change our view, and Miller's critics--including most of the journalists who work at the Times-- can go get stuffed.

"We're not answering you."

How's that for clear-eyed introspection?

Times watchers had been watching as the editorial page said:

* nothing about the big October 16th report giving the newspaper's official account of Miller's case, in which it was shown "that the paper's leaders, in taking what they considered to be a principled stand, ultimately left the major decisions in the case up to Ms. Miller, an intrepid reporter whom editors found hard to control;"

* nothing about Bill Keller's statement-of-regrets describing several mistakes he made in defending Miller;

* nothing about the arguments of Times-man Richard Stevenson, a reporter in the Washington bureau covering the Fitzgerald investigation, who told Keller (and Keller said it was "just right") that "there is, or should be, a contract between the paper and its reporters" stating "that the paper will go to the mat to back them up institutionally -- but only to the degree that the reporter has lived up to his or her end of the bargain, specifically to have conducted him or herself in a way consistent with our legal, ethical and journalistic standards, to have been open and candid with the paper about sources, mistakes, conflicts and the like, and generally to deserve having the reputations of all of us put behind him or her," which is an observation that goes right to the heart of the editorial page's defense of Miller;

* nothing about Maureen Dowd's unprecedented column a week ago arguing that Judy Miller's return to the Times would put the reputation of the newspaper at risk;

* nothing about public editor Barney Calame's column calling on the Times "to review Ms. Miller's journalistic practices as soon as possible," and arguing that all the trust issues "facing her inside and outside the newsroom will make it difficult for her to return to the paper as a reporter;"

* nothing about reports in the Wall Street Journal and New York Observer that Miller was negotiating with Sulzberger to leave the Times, which certainly suggests something went wrong in her lionization;

* nothing about comments describing Miller as a credibility disaster from former Times-men Tom Wicker, David Halberstam, Alex Jones and Adam Clymer. (Also see former Times reporter Doug McGill's letter to Sulzberger, "Is The New York Times About Journalism?")

These are your own people. None of it drew any comment from the page edited by Gail Collins, with the active participation of the boss, publisher Arthur Sulzberger, Jr. This same page had been Miller's biggest supporter in the press, the loudest voice, so the silence was striking. Maybe, I thought, Gail Collins had a long night of the soul and realized they had screwed something up along the way. But no. Today in a Times editorial about the big story of the day, The Case Against Scooter Libby, we read this:

Ms. Miller says she believed the waiver was coerced, and she went to jail until Mr. Libby assured her directly that he was freeing her from her promise.

While she was imprisoned for 85 days, this newspaper and this page gave Ms. Miller unwavering support. Recently, Times executives have expressed regrets about some of the ways her case was handled. Reflecting on these events, we have no reservations about the obligation of this paper to stand behind our reporter while she was in jail. We also think Ms. Miller was right on the central point, that the original blanket White House waiver was coerced.

We thought about it, and we have no regrets. Isn't that what it says?

Now I suppose a close reader could suggest they were being careful, and re-upping with Judy Miller only on two narrow counts-- "standing behind a reporter who is in jail," and "blanket waivers are coerced." Maybe the editors are saying: "Well, we don't regret those two things, but everything else..." And on everything else they would prefer not to comment. But even that is pretty strange for an institution that is in business to comment, and in a sense has no other role.

But then I find it very strange, too, that in all the prose the editorial pages found fit to print in support of Judith Miller's stand, which included many mentions of how important it was to pass a federal shield law and protect other journalists from being thrown in jail, it was somehow never the right time to mention what Bill Keller knew to be true (because he talked about it on television): Judith Miller's case would not have been covered by a federal shield law. (See my Oct. 2 post for the details.) Why? Because it fits into categories that are treated by the law as exceptions, the most important of which is disclosure of a covert agent's identity.

Everyone knows there will never be a federal shield law without that exception in it. Which is why Bill Keller mounted his own defense of Miller on different grounds: hers was an act of civil disobedience, he said. When the law doesn't protect you, yet you feel you have to make a stand, your conscience may require you to resist the law. That was his reasoning. He thought Miller was obeying her personal conscience in upholding her pledge to Libby.

The trouble is she was obeying her personal conscience when she told a Naval officer in Iraq, "I’m cleared for that, but he isn’t." (The "he" was fellow reporter Barton Gellman of the Washington Post, who had to step away.) She was obeying her personal conscience when she drifted back to a beat her editors had told her she was forbidden to cover. It was personal conscience that permited her to accept Lewis Libby's idea that he could be called a "former Hill staffer" so as to further disguise his identity, and leave fewer fingerprints.

Personal conscience told Miller she could stiff the reporters trying to make sense of her tale in the Times Oct. 16th report. (She would not show them her notes, for example.) Personal conscience permited Miller to deceive Washington bureau chief Phil Taubman, who asked if any Times reporters were on the receiving end of the leaks Miller received. (She said she wasn't involved.) All this is in the Oct. 16th report. And personal conscience allows her today to travel the country and even testify to Congress about the federal shield law without mentioning that her case would not have applied.

Keller, reflecting on what's happened and what has been revealed, now realizes that his support for Miller was wrongly decided, even though the principle--fully supporting reporters who protect their sources---is quite right. Gail Collins and Arthur Sulzberger have no such intention--which is baffling but somehow no longer surprising--and so they keep alive the fiction of Judith Miller as First Amendment hero. Reflecting on what has happened to this fiction they leave to others. This is not wise, and it is not safe. For their own reputations are at risk if they continue with it.

Oh, and in other "silence" news... the Times still hasn't answered my question: did Judith Miller have a security clearance, and who knew about it? The public editor thought it was a good question. He tried to find out, and he could not. That is not good.
Jay Rosen teaches journalism at New York University and writes the weblog PressThink. You can find his file of essays on the Miller case here.