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Miller case puzzles, concerns journalists

Sunday, October 2, 2005

NEW YORK -- New York Times reporter Judith Miller's decision to escape jail by testifying about her conversations with a confidential source surprised some of her supporters and left journalists wondering what her choice will mean for press freedoms.

Miller spent 85 days in jail for initially refusing to tell a grand jury whom she spoke with about Valerie Plame, a covert CIA official whose identity was leaked to several reporters in 2003.

Breaking the silence

But on Thursday she was abruptly released from prison, and a day later gave a grand jury the testimony long sought by special counsel Patrick Fitzgerald.

The reason for the abrupt change: Miller said that her source, identified by the Times as Vice President Dick Cheney's chief of staff, I. Lewis Libby, called her in prison and urged her to break her silence.

"This was the first time where he was saying, do it. I want you to testify," said Miller's attorney, Floyd Abrams.

News of her release from jail was greeted with joy by some of the organizations that had supported her, but also some dismay.

"Miller's release is obviously good news in itself," said the press freedom group Reporters Without Borders, "but she recovered her freedom in exchange for naming her source, albeit with the source's agreement, which means that the principle of the confidentiality of sources, one of the pillars of journalism, has been flouted."

'Dangerous territory'

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, praised Miller for her conduct in the case, but predicted its outcome would embolden other prosecutors to investigate press leaks, jailing reporters if necessary.

"This is very dangerous territory," she said.

In deciding to testify, Miller followed a path set by Time Magazine reporter Matt Cooper, who also was threatened with jail for refusing to say who told him about Plame's identity.

Shortly before he was to report to prison, Cooper said he received permission to break his silence from his confidential source: presidential adviser Karl Rove.

Bob Steele, a journalism faculty member at the Poynter Institute, said going back to a source to seek a waiver is probably ethical, but should be avoided if possible.

The idea of confronting a source who was initially promised confidentiality and asking for permission to go public discomfited Myron Farber, a New York Times reporter who was jailed for 40 days in 1978 for refusing to turn over notes reveal sources in a murder case. He said such requests might be seen as coercive.

"It may be inoffensive in this case," he said, given Libby's position of power and savvy in dealing with the press. "But smaller people might tremble more when the reporter calls back and says, 'can you release me?'

He quickly added that he had no cause to criticize Miller, whom he said he supported completely.

"I'm in no position, or you, to tell someone who is not a criminal, who has been locked up, 'You stick it out,"' he said.

Bob Steele, a journalism faculty member at the Poynter Institute, said going back to a source to seek a waiver is probably ethical, but should be avoided if possible.

He said reporters should ideally talk to their informants about how they might respond to a future subpoena before confidentiality is granted in the first place.

"Then, going back to the source (if a problem comes up later) doesn't come out of left field," he said.


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