THE BLOG
10/25/2005 12:51 am ET | Updated May 25, 2011

COVER-UP: The Publisher and Executive Editor of The New York Times Sanctioned a Cover-up in a Criminal Investigation

Miller_McPhee1.JPG

It should now be painfully obvious that the top leadership of The New York Times sanctioned, and participated in, a scandalous--if not legally liable--cover-up in a federal criminal investigation into how the name of a CIA covert operative was divulged to the press as part of an act of revenge against a Bush Administration critic of the war in Iraq. The Valerie Plame case traces back directly to an effort by the White House to rebut criticism of its abuse of intelligence to justify the invasion of Iraq.

There is journalistic corruption at the highest levels of The New York Times. Irreparable damage has been done to the reputation of the most eminent newspaper in the world. The resignations of both Arthur Sulzberger, Jr., and Bill Keller, should be on the table--not to mention the reporter known as “Miss Run Amok.” Both men have been engaging in what might be termed “limited, modified hangouts” as they shift from one foot to the other in offering explanations of their own conduct in regard to the license granted Judith Miller, and the role of the Times in the handling of the Plame story.

Imagine the consequences if it was reported (in the NYT) that the two top officers of a major American corporation had received information that one of its employees may have witnessed a felonious act involving national security and that the employee might possibly be involved in a conspiracy to obstruct justice so as to protect herself and a high government official whose name was known; that they coincidentally and tacitly cooperated with the White House to suppress the information on that employee’s relationship with the top aide to the Vice President; that they knowingly instructed other employees to “cook the books” in writing (or not writing) reports on what transpired in that relationship; and that they hired high-priced legal talent to fight the case all the way to the Supreme Court, so as to prevent the employee from appearing before a grand jury. You get the idea.

Uncle Barney

While critics have favorably noted public editor Byron Calame’s belated effort to address “The Miller Mess” that had been before the Times for over a year, his column of October 23 came across as more of an attempt to be an arbitrating force within the paper--a curmudgeonly “Uncle Barney”--than as an independent critic and “readers representative.” He had come to the game very late, after all!

He began his column: “THE good news is that the bad news didn’t stop The New York Times from publishing a lengthy front-page article last Sunday about the issues facing Judith Miller and the paper, or from pushing Ms. Miller to give readers a first-person account of her grand jury testimony.”

But, of course, the bad news DID stop the editors from publishing the article about some very serious lingering questions facing Miller and the paper--until October 16, 2005. That is NOT good news. And to suggest that Judy Miller gave readers a first-person account worthy of being considered reliable--after her lawyers vetted it and a friend co-wrote it--is not to be taken seriously.

Fundamentals

Calame seems satisfied that most of his fundamental concerns have been addressed. Well, how is this for an unaddressed FUNDAMENTAL question? Bill Keller and Arthur Sulzberger had been involved in what amounted to a COVER-UP of a provocateur's name (call Scooter Libby a “source” for a story that was never written by a reporter acting in an extra-reportorial activist role) that they knew to be a key suspect in the Valerie Plame case! That cover-up, incidentally, served to facilitate a White House strategy of non-cooperation.

Add that fundamental issue to another one: the deferential treatment of Ms. Miller by the top command. To Calame’s credit, he edged up to the heart of the matter: “The apparent deference to Ms. Miller by Arthur Sulzberger Jr., the publisher, and top editors of the Times, going back several years, needs to be addressed more openly...” Indeed, Miller has acknowledged Mr. Sulzberger’s special support in this case: “He galvanized the editors, the senior editorial staff... He metaphorically and literally put his arm around me.”

Why is it that--as Greg Mitchell in Editor&Publisher has pointed out--no one high up at the Times is calling outright for her to be fired? It is probable that Sulzberger and Keller have a real stake in not running her off the reservation because they fear a “memoir” that washes the dirty linen of The Times in public.

One other fundamental concern: In one of his recent mea culpas, “warhawk” Keller (when a columnist) acknowledged that his decision, between July 2003--when he became executive editor-- and May 2004, to act slowly in response to criticisms about the paper’s prewar coverage contributed to the dismay among readers and in the newsroom with the way the Times dealt with protecting Ms. Miller’s confidential sources in the leak investigation. Keller: “I fear I fostered an impression that the Times put a higher premium on protecting its reporters than on coming clean with its readers.” To address the WMD issue earlier could have become “a crippling distraction,” he has often averred. How so? Was it because there was strong support for the war in the higher echelons of the Times?

Keller is not correct in arguing that “if I had lanced the W.M.D. boil earlier, I suspect our critics might have been less inclined to suspect that, THIS time, the paper was putting the defense of the reporter above the duty to its readers.” Regardless, the connection between the government lies told to sell the war, as dramatically portrayed in the pages of the Times, and Plamegate would have been made.

Security Clearance Canard

Calame really falls down in addressing yet one more fundamental issue: “ANOTHER troubling ethical issue that I haven’t yet been able to nail down is whether Ms. Miller holds a government security clearance--something that could restrict her ability to share with editors the information she gathers.” If he does not know the way the government works in granting such clearances, why not pick up the phone and call the paper’s Pentagon reporter, Eric Schmitt?! Or, even better, call the commander of the 75th Exploitation Task Force--charged with finding WMDs-and ask about the conditions that he set down for this “embed,” such as censoring her copy before it left the field in the spring of 2003. Did Calame ask Howell Raines or Gerald Boyd if Miller discussed her “most secret reporting” only with them, the implication being that such reports did not make it into the Times?

Intelligence Sources and Methods

Amazingly, in an e-mail to Calame late Sunday night, Miller touted her alleged permission to be privy to ”intelligence sources and methods”--a phrase meaning the most sensitive of intelligence secrets such as electronic intercepts, satellite photographs, and human spies! That will get her into BIG trouble with the Army officer pictured beside her on HuffingtonPost’s website, Col. Richard McPhee, the commander of the 75th Exploitation Force in charge of searching for WMDs in the spring of 2003, following the invasion of Iraq. In fact, the Army will disavow sharing “intelligence sources and methods” with her. But, if true, the CIA, or the DIA, may want to launch an investigation of her claim independent from the special prosecutor in the Plame case.

In knowingly using that code word phrase “intelligence sources and methods,” she stated, moreover, that she shared such sensitive information with “the most senior Times editors.” How Raines and Boyd must have been titillated back then! And how interesting this may prove to be to special prosecutor Fitzgerald. Did she and Scooter Libby discuss “sources and methods” in their three meetings in June-July 2003?

This was the security clearance that never was; a canard. Yet, we can learn something on this subject from the latest Miller outburst to Calame: “My access to secret information during my embed in Iraq as an issue had been fully clarified by the time you published.” Not true. “No one doubts that I had access to very sensitive information or that I did work out informal arrangements to limit discussion of sensitive intelligence sources and methods...Though there was occasionally enormous tension over whether and when I could publish sensitive information, the arrangement ultimately satisfied the senior officers in the brigade hunting for unconventional weapons, the Times editors at the time, and me.” This is puffery of the first order.

Legal Strategy

“The freedom Ms. Miller was given to shape the legal strategy may have stemmed in part from the failure of top editors to dig into the case earlier in the battle,” wrote Calame. Has it occurred to him that Keller and Sulzberger were worried about their own legal vulnerability, and did not want to appear to have dug into the case for fear of it being suspected that they knew more than they admitted to? Is this latest Keller plea to be believed: “If I had known the details of Judy’s engagement with Libby, I’d have been more careful in how the paper articulated its defense.” We have it from him; he was involved in planning her defense as part of the paper’s! And, we have this from Miller, as of last night: “From the start, the legal team that the Times provided me knew who my source was and had access to my notes.”

But, in the same time frame, Keller “declined to tell his own reporters” that Libby was Miller’s source. Read the October 16 expose in the Times: “Throughout this year, reporters at the paper spent weeks trying to determine the identity of Ms. Miller’s source. All the while, Mr. Keller knew it, but declined to tell his own reporters.” To remind, according to that ten-day-old report, even after other news organizations disclosed that Libby was Miller’s source, Times editors did not publish his name, discouraged some story suggestions by reporters and killed an article about Libby’s role in the high-profile case! Nor would Keller and the general counsel answer the remarkably direct questions that intelligence reporter Doug Jehl, back near the end of July of this year, had put to him regarding the evidence (or lack thereof) for the claim that Miller had actually been reporting on the Plame story in the summer of 2003.

Keller has said he learned about the “Valerie Flame” notation only this month. Sulzberger said he knew nothing about it until told by his reporters days before. Ah, but did they have a pretty good idea that Miller was subpoenaed because she and Libby might have discussed Plame? Did she really not share with them “the possibility” that, in her various meetings with Libby, he told her that former Ambassador Joseph Wilson’s wife worked at the CIA? Executive Editor Bill Keller has been quoted as saying: “Judy believed Libby was afraid of her testimony. She thought Libby had reason to be afraid of her testimony.” In their own way, Sulzberger and Keller were “entangled” with I. Lewis Libby. Miller’s e-mail in response to Keller’s memo to staff last week: “After all, Libby and I had talked about many things, as you well know...”

Miller and Abramsom and the top Command

Miller told her newspaper that she “made a strong recommendation to my editor” that a story be pursued about Joe Wilson’s trip to Niger and his wife’s employment at the C.I.A. but “was told no.” Managing Editor Jill Abramson, the Washington bureau chief at the time, says Miller never made any such recommendation. But, as late as last evening, Miller was insisting that Abramson’s memory was faulty. Is this not a made up story to try to establish legitimate grounds for reporter’s privilege being invoked when she was subpoenaed?

Miller to Calame last night: “I remember asking the editor to let me explore whether what my source had said was true, or whether it was a potential smear of a whistleblower. I don’t recall naming the source of the tip. But I specifically remember saying that because Joe Wilson’s op-ed column had appeared in our paper, we had a particular obligation to pursue this.” Unh-hunh. This is a clear case of convenient memory prioritizing!

Washington bureau chief Bill Taubman is quoted as saying, on the matter of Wilson and his wife coming up in the conversations of Miller with government officials, that Judy claimed “she had not been at the receiving end of a concerted effort, a deliberate organized effort to put out information.” If not the receiving end, what about the passing end?

And, if she had not been assigned to report on Plame, and in any case did not do so, why should reporter’s privilege have applied? The three--Sulzberger, Keller, Miller--just did not want it known that her key confidential source might have been the one who brought up Wilson and Plame. Miller would not talk about her alleged “other sources" with Times reporters. Did she talk about them with Keller and Sulzberger? Miller had admitted in her lawyer-vetted October 16 entry in the Times that the federal prosecutor “asked if I could recall discussing the Wilson-Plame connection with other sources. I said I had, though I could not recall any by name or when those conversations occurred.” Can anyone who knew her professionally imagine this on-the-prowl aggressive reporter NOT remembering such an important detail--unless, of course, she was blabbering about it all over town.

Miller recounts that her lawyer, Floyd Abrams, told her months ago that Libby’s attorney had shared part of Libby’s grand jury testimony and was “pressing about what you would say. When I wouldn’t give him an assurance that you would exonerate Libby, if you were to cooperate, he then immediately gave me this, ‘Don’t go there, or, we don’t want you there.’ “ When did Sulzberger and Keller learn of this conversation from Abrams?

Again, they were party to withholding Libby’s name from the special prosecutor, Fitzgerald, who was investigating an act--not of a whistleblower--of revenge subject to felonious charges. Yet, Calame wrote: “Neither Mr. Keller nor the publisher had done much digging into Ms. Miller’s contacts with any of her confidential sources about Ms. Plame before the subpoena arrived on Aug. 12, 2004. Neither had reviewed her notes, for instance. Mr. Keller also didn’t look into whether Ms. Miller had proposed a story about the Plame leak to an editor.”

However, on numerous occasions, Bill Keller had stated that he was wary of revealing too much in the Plame/Miller case for fear of “compounding the legal problems.” This e-mail message to Calame on last Wednesday is suspect: “And under other circumstances it might have been fine to entrust the details--the substance of the confidential interviews, the notes--to lawyers who would be handling to case. But in this case I missed what should have been significant alarm bells. Until Fitzgerald came after her, I didn’t know that Judy had been one of the reporters on the receiving end of the anti-Wilson whisper campaign. I should have wondered why I was learning this from the special counsel, a year after the fact.”

Nevertheless: “By this time, I was included in a lot of meetings where the legal strategy was discussed, and I suspect if I had pressed for a compromise my view would have been taken seriously.”

When the public editor asked Sulzberger if the integrity of the Times and the First Amendment weren’t also at risk--good question--he replied: “There were other hands on the wheel as well. And obviously if we felt that the situation didn’t warrant the kind of support we gave her, we would have interceded.” Which other hands, specifically, other than Keller and Sulzberger? Too many cooks, as in lawyers? Contrary to what the interviews with their own reporters indicated, they did not leave all the “major decisions in the case up to Ms. Miller” (an intrepid reporter out of control).

Conclusion

It is true, as Arianna Huffington has so cleverly phrased it, one “could get whiplash reading The New York Times these days.” Or as Howard Kurtz of The Washington Post put it on Monday: “For months, Judy Miller has been kicked around by critics outside the Times, while her detractors at the Gray Lady did their sniping on a not-for-attribution basis. Until now. Bill Keller’s criticism the other day, accusing Miller of misleading the paper about her role in the Plame case, has been followed by broadsides from the ombudsman and, in a much-buzzed-about column, Maureen Dowd.

The crisis at the New York Times IS about much more than Judy Miller. Perhaps the Miller/Times scandal will encourage the newspaper to think critically about itself in larger terms, that is, about maintaining less proximity to power in a national security state.