July 6, 2005: New York Times Reporter Jailed for Refusing to Comply with Subpoena

Judge Thomas Hogan. [Source: Washington City Paper]A federal judge orders New York Times reporter Judith Miller, who continues to refuse to comply with a subpoena in the Valerie Plame Wilson identity leak case (see December 30, 2003), to go to jail until she or the Times complies. Time magazine and its reporter Matthew Cooper have already agreed to comply with the subpoena, thereby sparing Cooper jail time (see July 1, 2005 and July 6, 2005). [Washington Post, 7/3/2007]
Refusal to Reveal Sources - Miller tells Judge Thomas Hogan: “Your Honor, in this case I cannot break my word just to stay out of jail. The right of civil disobedience based on personal conscience is fundamental to our system and honored throughout our history.… The freest and fairest societies are not only those with independent judiciaries, but those with an independent press that works every day to keep government accountable by publishing what the government might not want the public to know.… If journalists cannot be trusted to guarantee confidentiality, then journalists cannot function and there cannot be a free press.” Her attorney says, “Judy’s view is that any purported waiver she got from anyone (see January 2-5, 2004) was not on the face of it sufficiently broad, clear, and uncoerced.” Hogan, in sharp disagreement, calls Miller’s decision not to testify a possible “obstruction of justice.” [New York Times, 7/6/2005; New York Times, 7/7/2005; Wilson, 2007, pp. 222-223] He seems moved by Miller’s impassioned speech until she invokes her time in Iraq. At that point, according to reporter Marie Brenner, his face darkens. Special prosecutor Patrick Fitzgerald will later say, “Ms. Miller has great respect for the military who served in Iraq, as we should all do, but if one of those officers’ [lives] was compromised by the leak of classified information, we would want to see that justice was done.” [Vanity Fair, 4/2006] Hogan says Miller can leave the jail any time she likes. “She has the keys to release herself,” he says. “She has a waiver [from her source] she chooses not to recognize” (see January 2-5, 2004 and August 12, 2004 and After). She can “avoid even a minute of separation from her husband if she would do no more than just follow the law like every other citizen in America is required to do.” When Miller’s lawyers ask for home detention and denial of e-mail and cell phone access instead of incarceration, Hogan dryly retorts, referring to Miller’s extensive time spent in Iraq: “Certainly one who can handle the desert in wartime is far better equipped than the average person jailed in a federal facility.… Forced vacation at a comfortable home is not a compelling form of coercion.” [New York Times, 10/16/2005; Wilson, 2007, pp. 222-223] Miller will later tell a colleague: “I was told to put my medications in a Baggie, to understand that I would have no makeup, no personal items except for my pills.” Her lawyers tell her, “You are going in one door of the courthouse and out another.” [Vanity Fair, 4/2006]
'Draconian Act' - Times editor Bill Keller calls Miller’s incarceration “a chilling conclusion to an utterly confounding case,” and Fitzgerald’s decision to jail the reporter a “draconian act” that punishes “an honorable journalist” and will “serve future cover-ups of information that happens in the recesses of government and other powerful institutions.” Keller praises Miller’s “determination to honor her professional commitment,” noting that her defiance of the subpoenas “is not an attempt to put herself above the law. The law presented Judy with the choice between betraying a trust to a confidential source or going to jail. The choice she made is a brave and principled choice, and it reflects a valuing of individual conscience that has been part of this country’s tradition since its founding.” [New York Times, 7/7/2005]