After spending 85 days in jail for not giving up the name of source Lewis "Scooter" Libby as part of the controversial CIA leak case in 2005, former New York Times reporter Judith Miller could say she has a vested interest in getting a federal journalism shield law on the books. Miller, who was under scrutiny for her stories about weapons of mass destruction during the lead-up to the war in Iraq, was criticized for being too close to the story and relying on information that later turned out to be false. She received additional criticism for her role in the Valerie Plame affair. Since leaving the Times, Miller has become an advocate for the shield law. The law would, except in certain circumstances, allow journalists to protect the identity of unnamed sources and generally prevent more reporters from going to jail. While similar legislation passed easily in the House last fall, it had been stalled in the Senate until recently, when Majority Leader Harry Reid said that he would like the bill to go to the floor before the August recess. The Senate is expected to vote on the bill Wednesday. This is a move that is long overdue, says Miller, who spoke to U.S. News about the pending shield law legislation, her time in jail, and her legacy.
Why do reporters deserve this protection?
It's called a federal shield law to protect journalists, but actually it's a federal shield law to protect the free flow of information and to encourage people to come forth when they see abuses that can't be rectified or ended through the normal channels. I think reporters need this now for a variety of reasons. One, because the number of subpoenas being issued to reporters in criminal and civil cases by either state or federal courts is increasing exponentially. In other words, Judy Miller is not the exception anymore, unfortunately. Judy Miller is the exception in that she went to jail, but today subpoenas are all too common. And we need the protection, No. 2, because the courts are really all over the map on this. And three, we need this protection at the federal level because we already have it at the state level in 49 out of the 50 states.
Attorney General Michael Mukasey and National Intelligence Director Mike McConnell have said that the bill would encourage leaks of classified information and also impede national security investigations. What are your thoughts on their argument?
There's been no indication of that. Where's the evidence for that? It hasn't had that effect at the state level. The House and Senate bills have been drafted with national security exemptions. If information is going to harm national security, all the bills in their current form would do is enable a court to weigh the balance between the importance of the information and the court's need for information from the reporter. What these bills do is basically turn into law what should be and what supposedly are the attorney general's guidelines at the moment before such subpoenas are even issued.
There's also this debate about bloggers and whether they should be included under the law. What is your opinion on who a journalist is?
It's a complicated issue these days. But I think it's pretty clear that the intention of our Founding Fathers was to protect the lonely pamphleteer. And as much as I may not like some bloggers and I may think that some bloggers are downright irresponsible, you could say that too about some news organizations that are considered "mainstream." I don't think we should exclude them. I think at this point, given their importance in educating people and their growing popularity, it would be crazy to write legislation that doesn't cover them.
If a federal journalism shield law were in place three years ago, how would it have affected your case?
That's impossible to know. I would like to think that perhaps Patrick Fitzgerald would have been deterred from issuing a subpoena or he may have thought twice, or three times, or four times about it before he issued it. The lawyers are divided about whether or not it would have helped my particular case.
Do you think that your case in general has helped or harmed the prospects of getting this legislation passed?
Sen. Arlen Specter told me when he visited me in jail and Rep. Mike Pence has said publicly that he was motivated by my case to propose the shield law legislation. Senator Specter said that my case was a major factor in his position that we needed such a law. So I think rather than saying no, they're wrong, I'll let the sponsors of the legislation speak for their own motivations.
Do you think the public generally supports the idea of journalists having this protection?
Yes, I think they do. The polls show they do. Despite the criticism of the minority of colleagues from the press, from the public I received thousands of letters when I was in jail. People were upset that a country that called itself free was sending a reporter to jail. That's not good for democracy.
You've been away from the Times for almost three years now. Do you have any regrets?
I wouldn't do anything differently. I felt that I made the right decision when I went to jail. I felt I made the right decision when I came out of jail. Holding out for a personal and written waiver that I could question my source about was the right position to take. Once again my intention was to give the source the choice of releasing me or not. It's his call. It's not my decision.