Judith Miller to name Scooter Libby

The Judy Code
By Douglas McCollam

In July of 2001, Steve Engelberg, then an editor at The New York Times, looked up to see Judy Miller standing at his desk. As Engelberg recalls, Miller had just learned from a source about an intercepted communication between two Al Qaeda members who were discussing how disappointed they were that the United States had never attempted to retaliate for the bombing of the USS Cole. Not to worry, one of them said, soon they were going to do something so big that the U.S. would have to retaliate.

Miller was naturally excited about the scoop and wanted the Times to go with the story. Engelberg, himself a veteran intelligence reporter, wasn't so sure. There had been a lot of chatter about potential attacks; how did they know this was anything other than big talk? Who were these guys? What country were they in? How had we gotten the intercept? Miller didn't have any answers and Engelberg didn't think they could publish without more context. Miller agreed to try and find out more, but in the end the story never ran.

Today, more than four years after 9/11, Engelberg, now managing editor of The Oregonian in Portland, still thinks about that story. "More than once I've wondered what would have happened if we'd run the piece?" he says. "A case can be made that it would have been alarmist and I just couldn't justify it, but you can't help but think maybe I made the wrong call."

For Engelberg, who served as Miller's editor at the Times for six years and co-authored the 2001 bestseller Germs with her about the rising threat of biological warfare, the story is the perfect Judy Miller anecdote. Where some investigative reporters are content to take months or even a year to dig out a story, Miller thought more in terms of a story a week. She was tenacious and tireless, journeying in late middle age across the rugged terrain of Afghanistan to report the paper's 2001 stories on Osama bin Laden that would win a Pulitzer. As the Times Cairo bureau chief in the early 1990s she warned of the rising tide of Islamic militantism in the region, eventually writing a groundbreaking book on the subject, God has Ninety-Nine Names. Later, she was among the first to chronicle the threat biological and chemical weapons in the hands of terrorists posed to the west.

But even when she was at her best, some people expressed concerns about her temperament and her methods. Perhaps the most revealing document to come out in the last few days wasn't Miller's 3,600 word summary of her grand jury testimony in the Valerie Plame leak case, but the memo of Craig Pyes, her reporting partner on the prize-winning bin Laden stories: "I do not trust her work, her judgment, or her conduct," Pyes wrote in an internal Times memo first reported Monday in The Washington Post. "She is an advocate, and her actions threaten the integrity of the enterprise, and of everyone who works with her." Later in the memo, Pyes goes on to say that Miller took "dictation from government sources" then tried to "stampede it into the paper."

That charge resonates today, of course, because that's exactly what people suspect Miller did with her inaccurate WMD reporting in the run up to the Iraq war. But as much heat as Miller took over WMD, the publication of the Times story on Sunday on the Plame leak, together with her personal account, marks the low point of Miller's career. The more you analyze Miller's story (I have read it four times now) the less it seems like a straightforward recitation of events and the more it seems like a carefully scripted message to Libby, and perhaps to other sources with whom Miller spoke about Valerie Plame and Joseph Wilson.

I confess part of this impression may stem from my own legal background. I know too well that once a prosecutor starts circling, especially a super predator like Patrick Fitzgerald, it can get very hard for parties to communicate with one another without stepping on a landmine. This, for example, is why Libby's lawyer, Joseph Tate, went ballistic when Floyd Abrams, one of Miller's lawyers, suggested that Libby had "signaled" to Miller that she shouldn't testify. To reporters such a request might be a normal part of the reporter-source relationship, but to a prosecutor it's witness tampering and obstruction of justice. Abrams put Libby on the spot. That's why Miller's insistence on a personal letter or telephone call from Libby releasing her to testify was so problematic. Anything much beyond "please testify" could easily be construed as an attempt to influence Miller's testimony. As Libby, a seasoned lawyer in his own right surely knows, a more complex communication is what obstruction charges are made of.

Which makes it all the more amazing that Libby wrote just such a letter to Miller while she was still in prison. The September 15 letter pointedly reminded Miller that no other reporter subpoenaed in the investigation had testified that Libby had discussed Valerie Plame with them. It also contained a loaded reference to how "out West where you vacation, the aspens will already be turning. They turn in clusters because their roots connect them." Their roots connect them? Is it a coincidence that Libby and Miller shared a long-held concern about the intersection of WMD and Islamic militantism? Miller's story implies in several places that she didn't know Libby all that well (going so far as to point out she didn't even recognize him when she bumped into him on a trip out West, a trip that Libby mentions in his letter to her). But it doesn't address the key question of whether Libby was a source for Miller's post-9/11 WMD reporting, or whether he helped arrange meetings with the Iraqi defectors who were peddling fabricated stories about Saddam's weapons.

In analyzing Miller's account, several themes emerge. First, with Fitzgerald clearly probing Vice President Cheney's office, the administration would obviously have a concern that Miller's notes might cause problems. But in her account in the Times Miller goes out of her way to stress that Libby protected Cheney at all times. This is key. While there seems little doubt that Libby would fall on his sword to protect his boss, a reporter is an altogether different matter. Miller's account clearly signals that her notes don't give Fitzgerald an avenue of attack on Cheney.

Second, as many have noted, Miller makes the suspect claim that she now can't recall who gave her Valerie Plame's name. Obviously then her direct testimony won't be the lynchpin that lets Fitzgerald make a case that Libby or anyone else supplied Valerie Plame's name, though the presence of her name in the same notebook as the notes of the Libby interview could allow a grand jury to draw a strong inference. Miller says she doesn't recall who gave the name, which, by default, doesn't finger Libby. But neither does it clear him.

Miller's account also contains damning revelations that show how far she strayed from accepted practices of journalism. One, she references having (at least in her own mind) an ongoing security clearance from the government that would allow her to discuss sensitive information about Iraq with Libby?-but not with her own editors. Talk about being captured by a source!

In addition, in her second interview with Libby about Wilson, Miller agreed to identify Libby as a "former Hill staffer," effectively aiding and abetting the administration's effort to undermine Wilson while at the same time covering its tracks. "I knew that Mr. Libby had once worked on Capitol Hill," she writes. Yes, he did?-he was briefly a special legal advisor to a House Select Committee on China more than a decade ago, surely the least relevant of all Libby's many governmental posts in the last quarter century.

Finally, and perhaps most depressingly, Miller continues to largely blow off responsibility for her pre-war reporting about Iraq's fictional WMD arsenal. At one time it might have been acceptable to say it was fundamentally a good-faith mistake. But not now. Not after she knows that her pre-war stories on WMD were in part a product of a government-financed campaign to hook up reporters?-she chief among them?-with dubious Iraqi defectors, and then later smear anyone who disputed the evidence. But Miller continues to be blasé. "If your sources are wrong, you are wrong. I did the best job I could," she told Times reporters for the piece.

But Miller's sources weren't just wrong, they spun her dizzy and in the process badly damaged the credibility of America's best and most important newspaper. Sunday's story in the Times gave Miller the perfect opportunity to express some kind of contrition over her part in this journalistic fiasco. She chose not to and that's a shame. Maybe there is something else Miller should know about those aspen trees out west, something Scooter Libby neglected to mention. Because their roots are connected they don't just turn together, they often burn together from fire that can travel out of sight and underground until it erupts into the light of day.

Douglas McCollam, a lawyer and former Washington correspondent for American Lawyer, is a contributing editor to Columbia Journalism Review.