You don’t have to like newspapers — and a lot of people don’t — to understand that the jailing of Judith Miller for keeping her word to a source is a sad day for all of us, including those who think it’s a good idea to put reporters in their place.
Bill Keller, the executive editor of the New York Times who is Ms. Miller’s boss, got it exactly right: Her decision to go to jail rather than betray a confidence was “a brave and principled choice … and anybody who believes that government should be aggressively watched feels a chill up their spine today.” It’s not clear what crime, if any, Ms. Miller committed. Indeed, it’s not even clear there was a crime. She was jailed by U.S. District Judge Thomas Hogan because she refused to say whom she had talked to in trying to find out who in the government, perhaps at the White House, “outed” Valerie Plame as a CIA covert agent to Robert Novak, the syndicated columnist who had identified her as such an agent. It’s against the law to identify an intelligence agent if the government is trying to keep his identify a secret, and if such identification is part of “a pattern” of trying to harm the nation’s intelligence apparatus. Ms. Miller asked questions but never wrote a word about it.
The truth is that government officials don’t like being watched, and government officials, definitely including federal judges and special prosecutors, feel a solidarity with the government officials who don’t like being watched. Patrick Fitzgerald, the special prosecutor, has spent $2 million trying to find someone to indict — “the ham sandwich” that any country prosecutor is said to be capable of indicting with one hand in his pocket — and after two years can’t supply value for the government’s money. He persuaded the judge to take it out on somebody, and Judith Miller was elected.
Judge Hogan no doubt felt the majesty of his authority slighted, and was easily persuaded by Mr. Fitzgerald to rescue him from the tangles of what is obviously a botched investigation. For her part, Judith Miller told the court that she understood the law. “I do not view myself as above the law,” she said. “You are right to send me to prison.” She understands as well that keeping her promise to a source is important, too. If newspapers can be forced to give up their sources, this will prevent chills from running up a lot of government spines. Forty-nine of the states, together with the District of Columbia, have laws in place to protect such sources. These laws were not enacted for the convenience of newspapers, but to buttress the guarantees of the First Amendment that are the heritage of all of us. Once such guarantees are abridged only government officials will speak freely.
Judith Miller saw her duty, and she did it. Every one of us, including Judge Hogan and Prosecutor Fitzgerald, are in her debt. She is clearly the best and biggest man in this sordid episode of justice having run off the rails.