The Story

by Judith Miller

  Floyd and George were stunned by what they considered Libby’s about-face on the waiver but acknowledged that it created an opening we had to pursue. Bob began speaking to Fitzgerald about our conditions for cooperating. I still refused to disclose conversations with sources other than Libby. I would not turn over my notebook or emails, Bob told him.

  Bob and his team had been carefully reviewing the notebook containing my interview with Libby. While there were references galore to Valerie Plame, there were no other sources identified. And while I had written her name on several pages, even before my interview with Libby—including a joking reference to “Valerie Flame”—no entry was linked to any of the sources in the notebook. There were only free-floating references, verbal doodles. While I remembered having discussed the Plame-Wilson affair with many of the officials and experts I spoke to, I couldn’t remember specifically when or with whom those conversations had occurred.

  Given that, Bob said he thought he could make a deal with Fitzgerald and wanted my permission to try. Again the Times objected strenuously. But I saw no reason not to pursue what I considered a long shot.

  Much to my surprise, Fitzgerald agreed to the deal he had rejected for so long. He would limit his questions and trust us to redact my notebooks and give him copies only of my conversations with Libby that pertained to the Plame-Wilson affair. He would not get the notebooks themselves.

  We had won.

  The Times had other ideas. In late September, all my lawyers met in the prison library to discuss whether I should accept Libby’s waiver and Fitzgerald’s agreement to limit his interrogation. Speaking for the Times, Floyd and George Freeman urged me not to testify. Libby’s waiver was not truly voluntary, they argued. Testifying would mean that I had gone to jail for nothing. It would make us look weak. I had to continue to protect my source, even if he was rejecting my protection. George argued that people would not understand why I had changed my mind, even if my source had changed his. Whereas, if I served the full 120 days of my sentence and Fitzgerald then tried to extend my time in jail, it would look as if he were reneging on the judge’s ruling and I would then be able to leave jail and testify “honorably.” Anything short of that, he warned, would play badly from a professional “legacy” or “PR” standpoint. Bob Bennett thought this was nuts and told them so. When things got heated, I told the team I would think things over.

  I was leaning heavily toward cooperating. Libby’s view was key. My willingness to protect a source who had not lied to me depended on what he wanted me to do. Source protection was ultimately the source’s call.

  The next day, Arthur visited me. In Peru, he had bought me a lapis necklace, which he held up to show me through the window that separated us. He hoped I would wear it when I left jail—on October 28, he said. I shouldn’t cooperate with the inquiry. I should stay in jail until the end of the grand jury as we had agreed, so that we could “win” this fight, despite Libby’s waiver and despite Fitzgerald’s agreement to limit his questioning. Fitzgerald had “caved” to our requests because the nation’s press and public opinion were turning against him, Arthur said. Although the news side of the Times had done little reporting on my case since my confinement, he conceded, the editorial side had written fifteen editorials. Fitzgerald would have to let me go when the grand jury expired.

  “Arthur, what if you’re wrong?”

  “Then we’ll really open up on them, all guns blazing,” he said.

  My heart sank as Arthur, my friend and boss, left the visiting booth. I sensed that if I did not adhere to the course he favored, he would not forgive me.

  — CHAPTER 22 —

  DEPARTURES

  September 29, 2005

  Before the prison van came to a stop, Arthur Sulzberger bounded out of his limo toward it. “Judy! Judy!” he hollered, pounding on the van’s windows.

  The marshal in front reached for his weapon. “Who’s that?” he barked, as his colleague pulled into a parking lot near the Alexandria Detention Center, our release site.

  “Don’t shoot!” I said. “He’s my boss.”

  The marshals ordered Arthur to “step back from the vehicle, sir,” as my shackles were removed. When I stumbled out, Arthur threw his arms around me. Separated in jail from those I loved and other visitors by a pane of bulletproof glass, I hadn’t hugged a friend other than my lawyers in almost eighty-five days. Then there were hugs all around: a bear hug from Bob Bennett, a more restrained version from Bill Keller.

  There was no sign that day of misgivings Arthur may have had about my decision to cooperate with Patrick Fitzgerald’s inquiry. At the Ritz-Carlton Hotel in Georgetown, where Arthur had reserved a suite in advance of my grand jury testimony the following day, Jason was waiting for me, smiling. He brought my gold necklace with the tiny ruby pendant, which I had taken off and given him shortly before Judge Hogan accused me of “defying the law” and sent me to jail. He also had photos of Hamlet, the puppy I had given him. Now doubled in size, Hamlet was twenty-two pounds of energy, he said. I took a nap on the giant bed, wrapping myself in the beautiful cotton sheets—a welcome change from the concrete slab I had slept on in prison.

  I learned later that Arthur and Bob Bennett had disagreed that afternoon about the celebratory dinner that Arthur had planned for me that night. Knowing how exhausted I was, Bob had wanted me to sleep and squeeze in a few more hours of grand jury preparation. Though Arthur had reluctantly scaled back his planned celebration, he refused to cancel it. After many champagne toasts, he told our small group that evening what he had told me in jail: he and the paper were proud of me; I was a credit to the Times and our profession; a “woman of true courage and principle,” he was quoted as saying. Although he hoped I had enjoyed the massage and manicure he had arranged at the hotel, he joked that I shouldn’t get used to such luxury: as soon as my testimony was over, it was back to my desk in New York. At the dinner’s end, he gave me a medal that the paper had given only a few reporters—the last of a series of commemorative coins awarded for service to the paper.

  Before my release, George Freeman had explained to Arthur diplomatically why I had heeded Bob Bennett rather than the Times legal team and agreed to testify. Floyd Abrams told me that Arthur had wanted my case to be what the Supreme Court’s 1971 Pentagon Papers ruling had been for his father: a clear moral and legal victory for the Times. In that earlier confrontation, Pentagon contractor Daniel Ellsberg leaked the top-secret study of America’s involvement in Vietnam to the paper. Nixon’s Justice Department asked the federal court to restrain its publication. The Supreme Court decided against prior restraint and for the paper.

  In my case, the Times was supporting an absolutist (or, as Bennett would later call it, “aggressive”) stance regarding a reporter’s privilege, an argument the court had rejected in its Branzburg ruling.1

  George and Floyd, like Arthur, thought I should stay in jail until the grand jury expired a month later on October 28. But both told Arthur they understood my decision. Whether I cooperated with Fitzgerald had to be Libby’s call, provided that his decision was made voluntarily.

  In jail, I had jotted down what I considered the key features of a “voluntary” waiver and a source’s rights and obligations. Oddly, our profession seemed not to have standards on this. First, I wrote, a reporter is honor bound to respect a promise not to reveal the identity of a “truthful” source: a source who hadn’t attempted to deceive. Second, such a pledge should not be given casually. Third, a waiver is not voluntary if it is elicited from a source who was threatened with “dismissal from employment, harassment, prosecution, or other intimidation.” (Blanket waivers elicited by those with “influence over or control of” the source’s employment or benefits, such as the cooperation that Bush demanded his senior staff provide, automatically failed that test.) Fourth, a waiver must be written and signed, addressed personally to the journalist who requested it, and specify what information could be shared. Fifth, the journalist must be able to inter
view the source “face-to-face or by telephone” to ascertain that the waiver was not coerced. Sixth, the source could not attempt to influence the journalist’s testimony, either before or after the waiver is given. Finally, while journalists may show prosecutors notebooks, emails, and other communications with a source, they should insist on the right to redact “extraneous” information not relevant to the subpoena to prevent a “fishing expedition” into their sources.

  Bill Safire said he hoped that journalists would debate what he insisted on calling the “Miller standard” for giving and waiving confidentiality pledges, whether or not Congress passed a media shield law. My jailing had enhanced the shield law’s legislative prospects, he told Arthur.

  That day, Arthur said he “fully supported” my decision to testify, just as he had backed my initial refusal to do so. “Judy has been unwavering in her commitment to protect the confidentiality of her source,” he said. He was “very pleased” that I had finally received a “direct and uncoerced waiver.” Keller agreed. My “steadfastness in defense of principle,” he said, had won “admiration from around the world, wherever people value a free, aggressive press.”

  At this point, Bob Bennett wrote later, the Times, Arthur, and I were clear “winners,” getting “well-deserved credit for acting in a principled and responsible fashion.”2

  * * *

  My three-hour grand jury testimony in late September 2005 recalling more than two-year-old discussions with Scooter Libby about Joe Wilson and Iraqi WMD went well, or so I thought. I had no inkling that some of the story I was writing about my conversations with Libby—or telling the grand jury—might turn out to be wrong.

  I knew what was at stake. Patrick Fitzgerald’s investigation was presumably focused on the narrow issue of whether White House officials had deliberately leaked classified information about Valerie Plame to columnist Robert Novak and other journalists in the summer of 2003 to punish Joe Wilson for challenging Bush’s case for war. But bloggers and many in the mainstream media insisted that the inquiry was really about whether Wilson was right to charge that the Bush administration had “twisted” intelligence about Iraqi WMD to “lie” the country into war.

  Much had been established by the time I appeared before the grand jury. Contrary to what Wilson claimed, neither Cheney nor anyone else at the White House had sent him to Africa or been briefed about his conclusions. The CIA had sent him without White House knowledge. And contrary to another initial claim, Valerie Plame had been involved in her husband’s selection, as the Senate Intelligence Committee concluded in its 2004 report.3 Wilson had returned from Niger with what the CIA interpreted to be a mixed message. On the one hand, it was “highly doubtful” a sale had occurred, he told CIA officials who informally debriefed him over Chinese takeout at his home. On the other hand, a former prime minister of Niger told him that Iraq had tried to acquire some uranium in the late nineties. Wilson had publicly shared the first part of his findings, which he and others cited as evidence that Bush lied about the WMD intelligence. But he did not write about or publicly disclose the former Niger official’s view that Iraq had tried to buy uranium, which Bush supporters then stressed. The CIA analysts concluded—wrongly, it turned out—that Wilson’s findings supported Britain’s claim that Iraq was still trying to acquire uranium for a weapons program. The agency’s interpretation was cited as support for the now-infamous “sixteen words” President Bush spoke in his 2003 State of the Union address: “The British government has learned Saddam Hussein has recently sought significant quantities of uranium from Africa.”

  By the summer of 2004, the White House was trying to defuse the growing public furor over Wilson’s charges by retracting that sixteen-word claim. Condi Rice said that it should not have been included in the speech because the evidence supporting it did not rise “to the level of certainty” required for a presidential speech. But rather than quell criticism, the retraction, which David Sanger and I wrote about, had inflamed it further.4

  While the Senate committee disputed several of Wilson’s assertions, it concluded that the intelligence community should not have included the uranium hunting claim in its NIE on Iraq’s unconventional weapons. That claim, among so many others, the senators concluded, misrepresented and overstated what the intelligence community thought it knew about Iraqi WMD. The report did not blame the White House or assert that officials had “lied.” The fault lay mainly with the CIA and its deplorable “tradecraft,” its “group think,” and other serious shortcomings the senators identified.

  The sixteen words were part of this story—as were uranium in Niger, Iraqi WMD prewar intelligence, and Joe Wilson and the outing of his wife, Valerie Plame, in Robert Novak’s column in mid-July 2003, eight days after her husband had accused the administration of twisting intelligence. I knew the grand jury might ask me about any or all of it.

  I told my legal team in the fall of 2005 that I knew about Plame’s job at the CIA before Novak “outed” her. While I couldn’t recall who first told me, I remembered discussing her on several occasions—with those whom I talked to routinely. Libby was not among them. In my notebooks, Plame’s name appeared in several places, but not as part of an interview—not even with Libby. I was fairly certain that Libby and I had talked in passing about her, based on my notes, but that he was focused on the situation in Iraq, the disputed WMD evidence, and what he called Wilson’s “reckless” charges.

  On September 30 I testified that I had not known Libby before the summer of 2003 and that we met on July 8, two days after the Times published Wilson’s charge of intelligence manipulation. During our two-hour breakfast meeting at the St. Regis in Washington, Libby summarized the findings in the CIA’s NIE, which I then believed were classified as secret.

  When I reviewed my notes of our conversation, I told the grand jury, I found a reference in parentheses: “(wife works at WINPAC)”—the CIA’s Weapons, Intelligence, Nonproliferation, and Arms Control Center. Based on where she worked, I assumed that she was an analyst, not a secret operator. I explained that I usually used parentheses when I was being told something I wanted to ask about, or to note something that I already knew but wanted to explore further. I thought I had heard about Plame’s job at the CIA before that meeting with Libby, I told the jurors, but couldn’t remember where or when. My recollection, I added, was “almost totally” note driven.

  I stressed that Libby was angry mainly about suggestions that WMD intelligence had been “massaged,” as Senator Jay Rockefeller charged. A year earlier, Rockefeller was among those warning that Saddam’s WMD arsenals posed “real threats to America today, tomorrow.” By the time of my grand jury testimony in 2005, he had accused Bush of having misled him with “good p.r. work.”5 Many who initially supported the invasion were now accusing Bush of deliberately distorting the evidence. When Libby and I met in the summer of 2003, all I knew for certain—all anyone seemed to know—was that no WMD were found in Iraq, and that the intelligence concerning Iraqi WMD which I and others wrote about before the war, was wrong.

  I acknowledged talking to Libby by phone on July 12. Before that, I had most certainly talked to others about Wilson’s wife. There were several references to her name in my notes, none connected to a specific interview. On one page are the words “Victoria Wilson” with a box around it. I told Fitzgerald that I was not sure Libby had actually used that name. One possibility was that I deliberately mentioned the name to him first, to see whether he would correct me or confirm her identity.

  I assumed this would be my only grand jury appearance, as Fitzgerald and I had agreed. But a second was required. The fault was mine. After I testified, Fitzgerald asked whether I might have met with Libby earlier, sometime in June. It was possible, I said, since much of what he told me in July sounded familiar. Ten days later, after I returned to the Times, I found a second notebook that contained notes of an earlier Libby meeting. I was alarmed. How could I have forgotten that earlier conversation? What else had I forgotte
n?

  These notes indicated that Libby and I had discussed Wilson’s trip to Niger on June 23, 2003, nearly three weeks before the discussion on July 8 I first testified about. My notes of that meeting also contain a reference in parentheses to Wilson’s wife.6

  When I discovered the other notebook, Bob Bennett informed Fitzgerald. On October 12 I testified again.

  My notes indicate that in our initial June meeting, Libby and I concentrated on the WMD intelligence failures in Iraq. Wanting to draw him out, I described the chaotic WMD search I had covered. I highlighted concerns, among them the often counterproductive competition between two military units hunting for WMD stockpiles and scientists: the army’s XTF in which I was embedded, and a then-secret group called Task Force 20, whose existence was unknown to the XTF’s senior officers until after the war had begun. Drawn from the Delta Force and the army’s elite Special Forces units, Task Force 20 was inspecting some of the same sites the XTF was covering, and searching for some of the same scientists believed to be involved in Saddam’s WMD programs.7 I told Libby how the two groups, unaware of each other’s movements, had once arrived at the same suspect site simultaneously, weapons drawn, and almost come to blows.

  I told the grand jury that my notes of our June meeting show that Libby tried to insulate his boss from charges of intelligence manipulation. He insisted, for instance, that Cheney neither knew Joe Wilson nor that he had gone to Niger to verify the uranium hunting report. My notes, I told the grand jury, contain another reference to Wilson’s wife: “(wife works in Bureau?).” While I was certain that Libby and I discussed Wilson’s wife, I told jurors, I couldn’t remember if that was the first time I had heard that she worked for the CIA.

  Fitzgerald had repeatedly asked me before my testimony whether “Bureau” might not refer to the Federal Bureau of Investigation. Yes, I said: normally it would. But since I thought that Libby and I had been discussing the CIA, I couldn’t be sure.