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.
And what about the original waiver that you received...?
It was a blanket waiver. That was a waiver demanded by his boss, and it was not specific. And when my lawyer Floyd Abrams specifically asked him for a personal waiver, Scooter Libby's lawyer said no. That's where we stood, and people didn't know that for a long time because it wasn't until I was released that all of that came out.
What did you learn about yourself in prison. Did the experience change you?
It made me think differently about who's in jail and why they're in jail. I got very interested in the prison system and very opposed to mandatory drug laws and some of the other reasons why we have the largest proportionally incarcerated population in the world in the United States. I stayed in touch with some of the women I was in prison with. It wasn't a Martha Stewart prison, as they say. It was tough. But it was also a very well-run prison. I think I came to appreciate how lucky I was to be, weirdly enough, at the Alexandria Detention Center as opposed to some of the other places that we read about and see in the press. And as a result, I got a dog. I gave my husband a dog when I went away. I thought he wouldn't be quite so lonely.
You took a lot of heat for your role in the Valerie Plame affair. If you could name one of each—what criticism do you think was fair and what criticism do you think was unfair?
Well, there was a stream of absolutely factually wrong stories from Arianna Huffington, who never apologized or corrected the record. She was wrong about everything. I didn't go to jail to protect myself because I was the source. I didn't go to jail for a book contract. I fully intended never to write anything until Scooter Libby's legal plight was adjudicated. I felt it was inappropriate to do so. And unethical.
Do you think any criticism of you was fair?
I didn't see a lot of it. I just didn't see a lot of it because in jail you don't get newspapers and when I came out I had many more things to do. We got the Washington Post for 22 women. I finally got the New York Times delivered. There's no Internet in jail...it's not like you can do your Google search in the morning.
What do you think your legacy will be?
I really hope it will be a shield law. And I hope to some extent that I encourage other journalists not to accept these blanket waivers. I think it's made us all a little more cautious about promising anonymity to sources. [When you are doing] intelligence reporting or you're interviewing "senior government officials," as they are routinely called in our papers, it has been fairly standard I think if they say, "I don't want to see my name in print," to say, "Yeah." That's the way Washington has traditionally worked. I think because of what happened in my case, people have had to be a little more careful about that. I think me, too, we were all a little too cavalier about extending anonymity pledges to sources. On the other end, it's very hard when you are dealing with people who handle intelligence to get any information at all if you are going to name them. It's a very tough area to report in.