Judith Miller Goes to Jail

Editorial

New York Times

July 7, 2005

This is a proud but awful moment for The New York Times and its employees. One of our reporters, Judith Miller, has decided to accept a jail sentence rather than testify before a grand jury about one of her confidential sources. Ms. Miller has taken a path that will be lonely and painful for her and her family and friends. We wish she did not have to choose it, but we are certain she did the right thing.

She is surrendering her liberty in defense of a greater liberty, granted to a free press by the founding fathers so journalists can work on behalf of the public without fear of regulation or retaliation from any branch of government.

The Press and the Law

Some people - including, sadly, some of our colleagues in the news media - have mistakenly assumed that a reporter and a news organization place themselves above the law by rejecting a court order to testify. Nothing could be further from the truth. When another Times reporter, M. A. Farber, went to jail in 1978 rather than release his confidential notes, he declared, "I have no such right and I seek none."

By accepting her sentence, Ms. Miller bowed to the authority of the court. But she acted in the great tradition of civil disobedience that began with this nation's founding, which holds that the common good is best served in some instances by private citizens who are willing to defy a legal, but unjust or unwise, order.

This tradition stretches from the Boston Tea Party to the Underground Railroad, to the Americans who defied the McCarthy inquisitions and to the civil rights movement. It has called forth ordinary citizens, like Rosa Parks; government officials, like Daniel Ellsberg and Mark Felt; and statesmen, like Martin Luther King. Frequently, it falls to news organizations to uphold this tradition. As Justice William O. Douglas wrote in 1972, "The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring to fulfillment the public's right to know."

Critics point out that even presidents must bow to the Supreme Court. But presidents are agents of the government, sworn to enforce the law. Journalists are private citizens, and Ms. Miller's actions are faithful to the Constitution. She is defending the right of Americans to get vital information from news organizations that need not fear government retaliation - an imperative defended by the 49 states that recognize a reporter's right to protect sources.

A second reporter facing a possible jail term, Matthew Cooper of Time magazine, agreed yesterday to testify before the grand jury. Last week, Time decided, over Mr. Cooper's protests, to release documents demanded by the judge that revealed his confidential sources. We were deeply disappointed by that decision.

We do not see how a newspaper, magazine or television station can support a reporter's decision to protect confidential sources even if the potential price is lost liberty, and then hand over the notes or documents that make the reporter's sacrifice meaningless. The point of this struggle is to make sure that people with critical information can feel confident that if they speak to a reporter on the condition of anonymity, their identities will be protected. No journalist's promise will be worth much if the employer that stands behind him or her is prepared to undercut such a vow of secrecy.

Protecting a Reporter's Sources

Most readers understand a reporter's need to guarantee confidentiality to a source. Before he went to jail, Mr. Farber told the court that if he gave up documents that revealed the names of the people he had promised anonymity, "I will have given notice that the nation's premier newspaper is no longer available to those men and women who would seek it out - or who would respond to it - to talk freely and without fear."

While The Times has gone to great lengths lately to make sure that the use of anonymous sources is limited, there is no way to eliminate them. The most important articles tend to be the ones that upset people in high places, and many could not be reported if those who risked their jobs or even their liberty to talk to reporters knew that they might be identified the next day. In the larger sense, revealing government wrongdoing advances the rule of law, especially at a time of increased government secrecy.

It is for these reasons that most states have shield laws that protect reporters' rights to conceal their sources. Those laws need to be reviewed and strengthened, even as members of Congress continue to work to pass a federal shield law. But at this moment, there is no statute that protects Judith Miller when she defies a federal trial judge's order to reveal who told her what about Valerie Plame Wilson's identity as an undercover C.I.A. operative.

Ms. Miller understands this perfectly, and she accepts the consequences with full respect for the court. We hope that her sacrifice will alert the nation to the need to protect the basic tools reporters use in doing their most critical work.

To be frank, this is far from an ideal case. We would not have wanted our reporter to give up her liberty over a situation whose details are so complicated and muddy. But history is very seldom kind enough to provide the ideal venue for a principled stand. Ms. Miller is going to jail over an article that she never wrote, yet she has been unwavering in her determination to protect the people with whom she had spoken on the promise of confidentiality.

The Plame Story

The case involves an article by the syndicated columnist Robert Novak, who revealed that Joseph Wilson, a retired career diplomat, was married to an undercover C.I.A. officer Mr. Novak identified by using her maiden name, Valerie Plame. Mr. Wilson had been asked by the C.I.A. to investigate whether Saddam Hussein in Iraq was trying to buy uranium from Niger that could be used for making nuclear weapons. Mr. Wilson found no evidence of that, and he later wrote an Op-Ed article for The Times saying he believed that the Bush administration had misrepresented the facts.

It seemed very possible that someone at the White House had told Mr. Novak about Ms. Plame to undermine Mr. Wilson's credibility and send a chilling signal to other officials who might be inclined to speak out against the administration's Iraq policy. At the time, this page said that if those were indeed the circumstances, the leak had been "an egregious abuse of power." We urged the Justice Department to investigate. But we warned then that the inquiry should not degenerate into an attempt to compel journalists to reveal their sources.

We mainly had Mr. Novak in mind then, but Mr. Novak remains both free and mum about what he has or has not told the grand jury looking into the leak. Like almost everyone, we are baffled by his public posture. All we know now is that Mr. Novak - who early on expressed the opinion that no journalists who bowed to court pressure to betray sources could hold up their heads in Washington - has offered no public support to the colleague who is going to jail while he remains at liberty.

Ms. Miller did not write an article about Ms. Plame, but the prosecutor, Patrick Fitzgerald, wants to know whether anyone in government told her about Mr. Wilson's wife and her secret job. The inquiry has been conducted with such secrecy that it is hard to know exactly what Mr. Fitzgerald thinks Ms. Miller can tell him, or what argument he offered to convince the court that his need to hear her testimony outweighs the First Amendment.

What we do know is that if Ms. Miller testifies, it may be immeasurably harder in the future to persuade a frightened government employee to talk about malfeasance in high places, or a worried worker to reveal corporate crimes. The shroud of secrecy thrown over this case by the prosecutor and the judge, an egregious denial of due process, only makes it more urgent to take a stand.

Mr. Fitzgerald drove that point home chillingly when he said the authorities "can't have 50,000 journalists" making decisions about whether to reveal sources' names and that the government had a right to impose its judgment. But that's not what the founders had in mind in writing the First Amendment. In 1971, our colleague James Reston cited James Madison's admonition about a free press in explaining why The Times had first defied the Nixon administration's demand to stop publishing the Pentagon Papers and then fought a court's order to cease publication. "Among those principles deemed sacred in America," Madison wrote, "among those sacred rights considered as forming the bulwark of their liberty, which the government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press."

Mr. Fitzgerald's attempts to interfere with the rights of a free press while refusing to disclose his reasons for doing so, when he can't even say whether a crime has been committed, have exhibited neither reverence nor cautious circumspection. It would compound the tragedy if his actions emboldened more prosecutors to trample on a free press.

Our Bottom Line

Responsible journalists recognize that press freedoms are not absolute and must be exercised responsibly. This newspaper will not, for example, print the details of American troop movements in advance of a battle, because publication would endanger lives and national security. But these limits cannot be dictated by the whim of a branch of government, especially behind a screen of secrecy.

Indeed, the founders warned against any attempt to have the government set limits on a free press, under any conditions. "However desirable those measures might be which might correct without enslaving the press, they have never yet been devised in America," Madison wrote.

Journalists talk about these issues a great deal, and they can seem abstract. The test comes when a colleague is being marched off to jail for doing nothing more than the job our readers expected of her, and of the rest of us. The Times has been in these fights before, beginning in 1857, when a journalist named J. W. Simonton wrote an editorial about bribery in Congress and was held in contempt by the House of Representatives for 19 days when he refused to reveal his sources. In the end, Mr. Simonton kept faith, and the corrupt congressmen resigned. All of our battles have not had equally happy endings. But each time, whether we win or we lose, we remain convinced that the public wins in the long run and that what is at stake is nothing less than our society's perpetual bottom line: the citizens control the government in a democracy.

We stand with Ms. Miller and thank her for taking on that fight for the rest of us.