Author: Dan Kennedy

Perhaps nothing was more dispiriting in Sunday’s massive New York Times takeout on the Judith Miller scandal than this section on executive editor Bill Keller, in which he came across as an ineffective wimp:

TIMES: On July 30, 2003, Mr. Keller became executive editor after his predecessor, Howell Raines, was dismissed after a fabrication scandal involving a young reporter named Jayson Blair.

Within a few weeks, in one of his first personnel moves, Mr. Keller told Ms. Miller that she could no longer cover Iraq and weapons issues. Even so, Mr. Keller said, “she kept kind of drifting on her own back into the national security realm.”

But an article in today’s New York Observer by Tom Scocca and Gabriel Sherman is more encouraging. They write:

SCOCCA AND SHERMAN: “A lot of people are galled by the quotation from Keller that after she was taken off the Iraq W.M.D. beat, she somehow found her way back in,” one Times staffer said.

In fact, Mr. Keller and Ms. Abramson had sharply rebuked Ms. Miller for that drifting. Though the Times account didn’t mention it, the two called Ms. Miller into Mr. Keller’s office this past winter and told her that she could no longer cover national security in any form for the paper.

“The implication was that she would resign,” said a person with knowledge of the meeting. Though Ms. Miller “blew up,” as the source put it, she took a two-week vacation, with Mr. Keller saying he expected to hear on her return whether she accepted the reassignment. When she came back, she agreed to the arrangement.

I’ve been nibbling around the edges of the Judith Miller saga – make that the Judith Miller scandal – because I keep thinking another shoe is going to drop. And it may. Perhaps special prosecutor Patrick Fitzgerald’s report, which could come sometime after the Oct. 28 expiration of the grand-jury investigation into the outing of CIA operative Valerie Plame, will shed more light on precisely what Miller was up to in her conversations with Dick Cheney’s chief of staff, Lewis “Scooter” Libby.

But it’s clear that the New York Times, our most important daily newspaper, is broken in some profound way. American Journalism Review editor Rem Rieder traces it back to the Times-assisted railroading of Los Alamos nuclear scientist Wen Ho Lee in the late 1990s. I’d go back even farther, to the Times’ endless credulous reports on the so-called Clinton scandals, none of which ever panned out (except for the legally irrelevant Monica Lewinsky matter), but which weakened Bill Clinton’s presidency considerably.

On “The NewsHour with Jim Lehrer” last night, former Timesman Alex Jones, director of the Kennedy School’s Joan Shorenstein Center and the co-author of a massive biography of the Sulzbergers, who founded the modern Times and continue to own it, had this to say:

JONES: Judy Miller’s credibility and the New York Times’ credibility are the same thing right now in my opinion, and until Judy Miller’s credibility is vetted and until the questions that have been raised and sort of – that have come tumbling out of this exploration of Judy Miller’s relationship not just with Scooter Libby but with the White House, with the administration, her role in the work-up to the Iraq war, all of these things are now part of the story, part of the story because the New York Times did the reporting it did on Sunday but also because Judy Miller has refused within the New York Times to be completely accountable because, for instance, in the case of Sunday’s articles, she declined to provide the reporters at the New York Times with an opportunity to examine those notebooks which were a critical part of her testimony.

Yes, Jones changed directions several times in mid-thought, but you get the idea. And he’s right: Miller’s credibility and the Times’ credibility are the same thing right now. And that’s not good for the Times.

I want to focus on one aspect of Miller’s first-person account that was published on Sunday – the revelation, if you can call it that, that she had security clearance while she was reporting from Iraq in the weeks after the fall of Baghdad:

MILLER: In my grand jury testimony, Mr. Fitzgerald repeatedly turned to the subject of how Mr. Libby handled classified information with me. He asked, for example, whether I had discussed my security status with Mr. Libby. During the Iraq war, the Pentagon had given me clearance to see secret information as part of my assignment “embedded” with a special military unit hunting for unconventional weapons.

Mr. Fitzgerald asked if I had discussed classified information with Mr. Libby. I said I believed so, but could not be sure. He asked how Mr. Libby treated classified information. I said, Very carefully.

Mr. Fitzgerald asked me to examine a series of documents. Though I could not identify them with certainty, I said that some seemed familiar, and that they might be excerpts from the National Intelligence Estimate of Iraq’s weapons. Mr. Fitzgerald asked whether Mr. Libby had shown any of the documents to me. I said no, I didn’t think so. I thought I remembered him at one point reading from a piece of paper he pulled from his pocket.

I told Mr. Fitzgerald that Mr. Libby might have thought I still had security clearance, given my special embedded status in Iraq. At the same time, I told the grand jury I thought that at our July 8 meeting I might have expressed frustration to Mr. Libby that I was not permitted to discuss with editors some of the more sensitive information about Iraq.

Mr. Fitzgerald asked me if I knew whether I was cleared to discuss classified information at the time of my meetings with Mr. Libby. I said I did not know.

Now, this is being treated as news by many media observers. In a widely quoted e-mail to Romenesko, retired CBS News correspondent Bill Lynch calls it an “enormous journalism scandal hidden” in Miller’s piece. But though Lynch is surely right that it’s a scandal, we have in fact known about it since June 2004, as I pointed out in a follow-up e-mail.

The revelation came in Franklin Foer’s extraordinarily tough profile of Miller in New York magazine. Miller at that time was in trouble over a previous, related scandal: her credulous reporting on Iraq’s alleged weapons capabilities and ties to Al Qaeda in the months leading up to the war. Foer describes Miller in Iraq in the spring of 2003:

FOER: … Miller had helped negotiate her own embedding agreement with the Pentagon – an agreement so sensitive that, according to one Times editor, [Secretary of Defense Donald] Rumsfeld himself signed off on it. Although she never fully acknowledged the specific terms of that arrangement in her articles, they were as stringent as any conditions imposed on any reporter in Iraq….

As Miller covered MET Alpha, it became increasingly clear that she had ceased to respect the boundaries between being an observer and a participant. And as an embedded reporter she went even further, several sources say. While traveling with MET Alpha, according to [Eugene] Pomeroy [a military source Foer relied on] and one other witness, she wore a military uniform.

When Colonel Richard McPhee ordered MET Alpha to pull back from a search mission and regroup in the town of Talil, Miller disagreed vehemently with the decision – and let her opinions be loudly known. The Washington Post‘s Howard Kurtz reprinted a note in which she told public-affairs officers that she would write negatively about his decision if McPhee didn’t back down. What’s more, Kurtz reported that Miller complained to her friend Major General David Petraeus. Even though McPhe’’s unit fell outside the general’s line of command, Petraeus’s rank gave his recommendation serious heft. According to Kurtz, in an account that was later denied, “McPhee rescinded his withdrawal order after Petraeus advised him to do so.”

Miller guarded her exclusive access with ferocity. When the Washington Post‘s Barton Gellman overlapped in the unit for a day, Miller instructed its members that they couldn’t talk with him. According to Pomeroy, “She told people that she had clearance to be there and Bart didn’t.” (One other witness confirms this account.)

Now, go back and read Miller’s account of what she told the grand jury about her conversations with Libby. Libby may have thought she still had security clearance. Did she? She didn’t know.

I’m not the first person to make this observation – unfortunately, I’ve lost track of where I picked it up – but it is possible that Miller went to jail not only because she was protecting a source, but because she was also afraid of the legal consequences if she disclosed classified information she had received as a result of having security clearance. And it’s possible that Libby wasn’t breaking the law in disclosing that Bush-administration critic Joseph Wilson’s wife was a CIA operative because he was giving the information to someone with clearance to be told such things.

And it’s possible that all this was playing out with publisher Arthur Sulzberger Jr. and executive editor Bill Keller being unaware of this bizarre twist. Yes, according to the unnamed Times editor with whom Foer spoke, people at the Times were aware that Miller had negotiated an unusually sensitive agreement with the Pentagon. But were they aware that she may have had security clearance? And given that they should have been alerted to that possibility when they read Foer’s story, did they think about the implications later that summer, when Fitzgerald first started threatening Miller with jail if she refused to testify? Did they think about it some more during all those months when they gave her their support?

So many questions. And as Alex Jones says, the Times doesn’t have any hope of regaining its credibility until we have answers to all of them.

Once again, the “For Sale” sign has gone up outside the Boston Herald. Pat Purcell, the owner of Herald Media Inc., tells the Herald’s Greg Gatlin that he must recapitalize his company now that some of his investors are looking to cash in. And he declines to rule out a sale of either the Herald or his 100-plus community newspapers in Eastern Massachusetts.

But how likely is it that Purcell would sell? Over the years, the unknown factor in a long string of Herald-for-sale rumors has always been the extent of the financial pressure under which Purcell labors. Herald Media is a privately held company, and Purcell holds his cards pretty close to the vest, so it’s nearly impossible to know for sure.

Certainly it wasn’t a good sign when he slashed the Herald’s newsroom contingent by 25 percent earlier this year. But given the cutbacks that are now spreading across the entire newspaper business, including at the Boston Globe, those reductions don’t look quite as horrifying as they did at the time. In any case, the new, downsized Herald has proved to be a better paper than I would have thought possible.

Whenever Purcell has rallied the troops, my sources have told me that he never rules out the possibility of a sale, but that he always plays down its likelihood as well. His comments in today’s Herald appear to be along the same lines. Gatlin writes:

GATLIN: Purcell said if someone came forward looking to take a majority interest in the company he would have to consider it.

“Even if that were the case, I don’t think there’s a better operator … than us and the team we’ve assembled here,” he said. “I don’t think there’s going to be any problem with continuing to operate this business.”

The closest Purcell came to selling in recent years appears to have been last winter, when he engaged in what were described to me as serious talks with the Hollinger chain (scroll down) about selling all of his papers for about $250 million. But it didn’t happen, and Purcell may well have been more interested in showing his investors that Herald Media was worth a quarter of a billion dollars than he was in actually collecting the money.

The Boston Globe’s Christopher Rowland reports on Purcell’s latest moves today, too, but doesn’t mention the sale possibility.

Boston civil-liberties lawyer Harvey Silverglate, with whom I’ve occasionally collaborated, has written a chilling column for the National Law Journal on Hosty v. Carter, which could seriously curtail the student press.

The decision, by the U.S. Court of Appeals for the Seventh Circuit, Silverglate warns, “gives administrators unfettered discretion to become in effect the new editors of our nation’s college newspapers.”

Here’s a roundup of coverage compiled by the Student Press Law Center.

Jay Rosen adds to his first take on the New York Times’ package on Judith Miller. It’s on his blog, but he was also kind enough to post it to Media Nation. Click here. I’m particularly troubled by his spot-on observation that Miller had – and may have to this day – government security clearances unavailable to others at the Times.

Rosen to M.N.: “I want your considered take too.” M.N. to Rosen: I’m thinking, Jay, I’m thinking!

And I’m thinking that Mickey Kaus’ post is, along with Rosen’s, especially worth reading. Among other things, Kaus writes:

KAUS: It’s now clear confinement wasn’t pointless. It worked for the prosecutor exactly as intended. After a couple of months of sleeping on “two thin mats on a concrete slab,” Miller decided, in her words, “I owed it to myself” to check and see if just maybe Libby really meant to release her from her promise of confidentiality. And sure enough – you know what? – it turns out he did! The message sent to every prosecutor in the country is “Don’t believe journalists who say they will never testify. A bit of hard time and they just might find a reason to change their minds. Judy Miller did.” This is the victory for the press the Times has achieved. More journalists will now go to jail, quite possibly, than if Miller had just cut a deal right away, before taking her stand on “principle.”

Once Miller got herself into this bind, it’s hard to know how she could have handled it differently. If she had stuck to principle – or “principle,” as Kaus would have it – she could have been looking at another 18 months in jail.

Still, there’s no question that special prosecutor Patrick Fitzgerald sent a message to prosecutors across the country: Squeeze a journalist hard enough, and you’ll get what you want.

Well, it’s finally here. The New York Times, as promised, has published a long overview of Judith Miller’s role in the Valerie Plame investigation, as well as a first-person account by Miller of what she told the grand jury. At 5,900 and 3,600 words, respectively, we should learn much. We don’t. For now, a few observations:

1. Miller’s refusal to cooperate with her colleagues’ attempt to set the record straight is stunning. This paragraph from the main story says it all: “In two interviews, Ms. Miller generally would not discuss her interactions with editors, elaborate on the written account of her grand jury testimony or allow reporters to review her notes.”

2. The lead story is suffused with personal contempt for Miller. Her grotesquely wrong stories claiming that Saddam Hussein’s Iraq was a veritable hotbed of unconventional weapons and terrorist gangs is fair game, as is the weirdly disturbing manner in which she conducted herself with Vice President Dick Cheney’s chief of staff, Lewis “Scooter” Libby. But I’m not sure what to make of this:

TIMES: Inside the newsroom, she was a divisive figure. A few colleagues refused to work with her.

“Judy is a very intelligent, very pushy reporter,” said Stephen Engelberg, who was Ms. Miller’s editor at The Times for six years and is now a managing editor at The Oregonian in Portland. “Like a lot of investigative reporters, Judy benefits from having an editor who’s very interested and involved with what she’s doing.”

In the year after Mr. Engelberg left the paper in 2002, though, Ms. Miller operated with a degree of autonomy rare at The Times.

Douglas Frantz, who succeeded Mr. Engelberg as the investigative editor, said that Ms. Miller once called herself “Miss Run Amok.”

“I said, ‘What does that mean?’ ” said Mr. Frantz, who was recently appointed managing editor at The Los Angeles Times. “And she said, ‘I can do whatever I want.’ “

Ms. Miller said she remembered the remark only vaguely but must have meant it as a joke, adding, “I have strong elbows, but I’m not a dope.”

It’s one thing for New York magazine to mock your personal life, as happened last year. It’s quite another to be subjected to this kind of treatment in your own paper. I’m still thinking about whether it was warranted, but it doesn’t seem to me that relevance is firmly established.

3. The biggest anti-Miller bombshell comes from Miller herself:

MILLER: Mr. Fitzgerald [a reference to Patrick Fitzgerald, the special prosecutor] asked about a notation I made on the first page of my notes about this July 8 meeting, “Former Hill staffer.”

My recollection, I told him, was that Mr. Libby wanted to modify our prior understanding that I would attribute information from him to a “senior administration official.” When the subject turned to Mr. Wilson, Mr. Libby requested that he be identified only as a “former Hill staffer.” I agreed to the new ground rules because I knew that Mr. Libby had once worked on Capitol Hill.

That, folks, is close enough to a lie by any standard, and Miller was willing to go along with it – to deceive her readers on behalf of a source.

Howard Kurtz, in the Washington Post, blandly calls it a “journalistic issue” and claims the “former Hill staffer” description is “technically accurate.” I suspect Kurtz will do better than that once he’s had time to think about it.

In a fierce commentary for Editor & Publisher calling on the Times to fire Miller, Greg Mitchell has this to say about Libby’s request: “This was obviously to deflect attention from the Cheney office’s effort to hurt Wilson. [Bush critic Joseph Wilson is Plame’s husband, and a leading theory is that the White House blew Plame’s CIA cover in order to retaliate against Wilson.] Surely Judy wouldn’t go along with this? Alas, Miller admits, ‘I agreed to the new ground rules because I knew that Mr. Libby had once worked on Capitol Hill.'”

This much is sure: Miller admits she was willing to lie to her readers, and she seems even now not to realize how serious that is. Not good.

4. We still don’t know how Fitzgerald glommed on to Miller in the first place. Remember, Miller never actually wrote a story about the Plame matter, unlike Time magazine’s Matt Cooper and, of course, syndicated columnist Robert Novak. This doesn’t reduce her legal exposure, as some of the more reductive analyses would seem to suggest, but it certainly makes you wonder how Fitzgerald knew that she had received information about Plame. Perhaps Fitzgerald himself will tell us when he finally issues his report.

Finally: As you might expect, Jay Rosen is threatening to pull an all-nighter. If you’re staying up, tune in here.

We’re approaching critical mass on the bird-flu story, which has been several years in the making. Today’s Globe and Herald both cover Gov. Mitt Romney’s plans to deal with a pandemic, should it ever come. The disease has spread to Turkey, although so far bird flu remains primarily a killer of animals, not humans.

Is the panic warranted? Given that we can expect the story to overtake tales of missing white women on the cable channels any moment now, this is a good time to re-examine an article published by The New Republic back in September. The piece, by science writer Wendy Orent (free link here), argues that the incipient panic over bird flu is much ado about nothing – which is certainly good news if it’s true. Here’s the nut:

ORENT: Is the Big Flu coming? Judging from such predictions, it must be. But it’s not. The expert predictions don’t take into account the evolutionary events necessary to turn an avian flu virus into a mass human killer. In ignoring the evolution of infectious disease, flu experts, science writers, and public health officials are leading us down the same path we’ve followed too many times before, with Swine Flu, Ebola, and Severe Acute Respiratory Syndrome (SARS).

Read the whole thing. Orent explains, in a reasonably understandable manner, how unlikely it is that the disease would mutate into a mass killer of humans, and why this isn’t like 1918. For one thing, she argues, the packed, disease-friendly conditions of World War I trench warfare were crucial to the flu’s evolving into a deadly pandemic. Those conditions simply don’t exist today.

Then again, the first comment to Orent’s article begins, “That article was so poorly written and ignorant of flu history & fact as to be appalling. Amazing that they let it be printed.” So caveat emptor.

Update: Does anyone remember the old Dave Berg cartoon in Mad Magazine about the woman who tries to join a conversation about Greece and Turkey, only to start babbling about grease and turkey? It’s sexist, but apt, given that this post involves bird flu and the nation of Turkey – not bird flu and, you know, turkey. If you got confused, as one commenter did, forgive yourself. It’s an easy mistake to make

One of my media-law students called my attention to this article in Editor & Publisher about efforts to draft a federal law that would protect journalists from having to give up their confidential sources. The upshot is that Sen. Richard Lugar, the Indiana Republican who’s co-sponsoring the legislation, says those protections would probably not be extended to bloggers.

“As to who is a reporter, this will be a subject of debate as this bill goes farther along,” Lugar was quoted as saying at a media conference. “Are bloggers journalists or some of the commercial businesses that you here would probably not consider real journalists? Probably not, but how do you determine who will be included in this bill?”

The article, written by E&P’s Mark Fitzgerald, notes an additional difficulty: the problems inherent in defining who’s a journalist and who isn’t would necessarily lead to government licensing of journalists, whether anyone would dare call it that or not.

Lugar says he was moved by the plight of New York Times reporter Judith Miller, who, as we all know, served 85 days in jail recently before she was given leave by her White House source, Lewis “Scooter” Libby, both to identify him and to discuss their conversations with respect to the Valerie Plame investigation. (At least that’s Miller’s version of what happened. Howard Kurtz has a good piece in today’s Washington Post on how the uproar over Miller’s credibility is affecting the demoralized Times newsroom.)

But it’s unimaginable that any shield law would be strong enough to allow someone like Miller to remain silent. That’s because the U.S. Supreme Court found in 1972 that there is no constitutional right for a reporter to protect his or her confidential sources if called on to do so as part of a criminal investigation. The decision, Branzburg v. Hayes, was muddled enough that it led many judges to use a balancing test, calling reporters to testify only if the information they had was crucial and there was no place else to get it. But even if that balancing test had been used, Miller probably still would have been called. And an absolute shield law could be struck down as an unconstitutional encroachment on the Sixth Amendment right to a fair trial, among other things.

Still, some form of federal shield law would be welcome. Every state except Wyoming either has a shield law or a state court decision recognizing a limited right by reporters to shield their sources. The questions, then, remain: Who’s covered and who isn’t? And what about the bloggers?

I think the solution is to protect journalism rather than journalists. If a blogger is engaged in something that can clearly be defined as journalism, then she should enjoy the same rights and protection as a card-carrying member of the MSM. It’s absurd to think, for instance, that a professional journalist such as Josh Marshall, who writes the blog Talking Points Memo, could be denied protections extended to Miller and Time’s Matthew Cooper.

I realize that if deciding who’s a journalist is difficult, determining what journalism is could be even more vexing. Certainly you’d need some guidelines. And, as another one of my students pointed out, you’d have to make sure that the shield didn’t extend to someone who set up a blog solely for the purpose of avoiding the grand jury.

But judges have to make these kinds of decisions all the time. Surely it would be better to handle it on a case-by-case basis than to exclude all bloggers from whatever protections Congress might pass into law.

Yesterday I had a chance to take part in a panel discussion at Northeastern’s Snell Library titled “Public/Private: Intersections in New Media.” The event is over, but the Web site lives on. An essay I wrote for the site is online here, but please be sure to read those of the other participants as well.

Here’s the lead of a Washington Post story today on the White House’s attempts to use religion in order to shore up the prospects of President Bush’s embattled Supreme Court nominee, Harriet Miers:

POST: President Bush said yesterday that it was appropriate for the White House to invoke Supreme Court nominee Harriet Miers’s religion in making the case for her to skeptical conservatives, triggering a debate over what role, if any, her evangelical faith should play in the confirmation battle.

Bush said religion is part of Miers’s overall background much like her work as a corporate lawyer in Texas, and that “our outreach program has been just to explain the facts to people.” At the same time, his attorney general went on television and described Miers as “pro-life.” But the White House said her religious and personal views would not affect her ability to serve as a neutral justice.

“People ask me why I picked Harriet Miers,” Bush said in response to a reporter’s question at an Oval Office appearance with Polish President Aleksander Kwasniewski. “They want to know Harriet Miers’s background. They want to know as much as they possibly can before they form opinions. And part of Harriet Miers’s life is her religion.”

But when White House spokesman Scott McClellan was asked about this yesterday, he said the inordinate public attention on Miers’ religious beliefs was – you guessed it – the fault of the media. Here is the end of a long exchange:

Q: It seems that what you’re doing is trying to calm a revolt on the right concerned that Harriet Miers isn’t conservative enough, by saying, it’s okay, she is conservative enough, because she goes to this church.

MR. McCLELLAN: No, it seems like the media wants to focus on things other than her qualifications. Maybe your news organization would rather focus on things other than her qualifications and record. The President believes we should focus on her qualifications and her record and her judicial philosophy. And that’s what we emphasize.

Talk about trying to have it both ways.

The Post also reports today that some Bush administration officials grumbled that Miers wasn’t even qualified to be White House counsel when she was named to succeed Alberto Gonzales, now the attorney general. Supposedly they’ve changed their minds.