The Story

by Judith Miller

  No paper or internet site was as consistently hostile as Arianna Huffington’s Huffington Post, her relatively new website that was fixated on generating “buzz.”

  In late July 2005, as I sat in jail, Arianna, whom I knew socially since Washington, mocked the notion that I was a “First Amendment hero.” I was trying to rehabilitate my reputation after “cheerleading for the invasion of Iraq” and “hyping the WMD threat,” she wrote. She reported a “scenario” she claimed was making the rounds at the Times: I had refused to reveal my “source” at the White House because I was the source. Supposedly furious that Joe Wilson had challenged the administration’s case for war and, by implication, my reporting, I had discovered that Wilson was married to a CIA agent and had “passed the info about Mrs. Wilson to Scooter Libby.” Maybe I had told Karl Rove, too. I hadn’t written about Plame because my goal “wasn’t to write a story, but to get out the story that cast doubts on Wilson’s motives.”4 When that “scenario” failed to catch fire, Huffington upped the ante. I had gone to jail not only to protect myself as the source of the Plame leak but also to get a lucrative book contract. Simon & Schuster had agreed to pay me an advance of $1.2 million, she wrote. She wondered if Alice Mayhew, my longtime editor, had visited me in jail to encourage me to enhance our book’s sales by spending even longer in jail. Only after my agent, the Times, and S&S’s president flatly denied the existence of such a contract (I couldn’t respond from jail) did Huffington publish not a retraction or a correction but an “update” that repeated the book contract fabrication.

  In truth, I had instructed Amanda Urban, my book agent, not to entertain offers to write about ADC or any aspect of the Plame investigation while I was in jail. She felt obliged to pass along news of only one proposal: a staggering offer of $100,000 from Graydon Carter’s Vanity Fair for a single essay about life in jail and the case that brought me here. Though she knew I would say no, she thought it might cheer me up to know that my story was generating such interest. But I had decided against entertaining such offers precisely to avoid creating the impression that I was benefiting financially from what might be a protracted struggle.5 The second tough decision I made was to abandon my long-standing desire to collaborate with Charles Duelfer on a book about the Iraq WMD fiasco. Since I had no idea how long Fitzgerald’s inquiry and my ordeal would last, Charles and I agreed that it would be better for him to proceed on his own. His book is essential reading for anyone seeking to understand the pitfalls of intelligence collection and the implications of what American weapons hunters found in Iraq.

  Since I had no internet in jail, I usually learned about such attacks in the blogosphere from my lawyers. Saul Pilchen, Bob Bennett’s partner, had broken the news to me about Arianna’s scoops. “You are not going to like this,” he said when he visited in July with a packet of such stories on her site, as well as the Daily Kos, Slate, Editor & Publisher, and other publications that had not asked for my comment on stories before and while I went to jail. “Don’t get upset!” Saul counseled.

  * * *

  By September, life at ADC had become semitolerable. In addition to my job in the laundry, the jail’s director permitted me to organize the library. The jail did not permit visitors to bring prisoners books. So the Times was “donating” books to the jail’s library so that I could read them. It seemed fitting that I would help catalogue and arrange the donations of over a hundred gifts from colleagues and other friends. The library had stacks of unread Bibles, but almost no books in Spanish, despite the many Hispanic inmates. The ADC had also banned categories of books: anything “pornographic,” for instance, broadly defined. Books that encouraged violence or terrorism were out.

  Reading was unpopular for other reasons, the lighting being just the most obvious. Because it is a solitary pastime, and we spent so much time in our cells, most of us craved companionship: sharing popcorn during a favorite TV show or playing cards. Many of the women were on medication for various psychological disorders. They rarely had the energy to read. A veteran counselor at the jail hinted at yet another reason: Did I not suspect that some of my fellow inmates might be unable to read? She suggested that when I picked out books for the book carts that circulated once a week through the units, I might include some fairy tales, children’s books, and cartoon books. Her suggestion worked. Those offerings were a hit.

  As weeks passed, I took comfort in small pleasures: hot dogs for lunch on Friday (a recognizable meat); a hard-boiled egg and real tea for breakfast on Sunday; the salad I was once given; and the quart of Coke I downed at the staff cafeteria to compensate me for the loss of several packages of trail mix an inmate was caught stealing from my cell. I learned a number of useful skills: how to make lipstick and rouge out of a paste of crushed red-colored Skittles and M&M’s; how to use dental floss to tweeze my eyebrows; how to make a headband from the elastic portion of a sock. Ebony taught me how to do the electric slide, a line dance popular in her ’hood. Anna taught me the macarena, and Felicity the national anthem of Honduras. I learned five new yoga positions from Amy, and from Ricochet, the lyrics of “Just a Lil Bit” by rapper 50 Cent. I did not learn to crochet, despite the efforts of Ms. Denise Costley, the kind “empowerment” counselor.

  I was not the ADC’s most high-profile prisoner. That honor went to Zacarias Moussaoui, the alleged “twentieth hijacker,” who eventually pleaded guilty to crimes in connection with the 9/11 attacks. “Moose,” as the staff called him, was confined in what had once been the women’s mental health unit on the fourth floor. He had six cells to himself. Though he was on twenty-two-hour lockdown, he had also been given a desk and office chair, a computer with internet, and even a hanging plant because he was defending himself at his trial. Moussaoui was clearly crazy, a deputy told me. But he was intelligent, surly, and mean. He refused to talk to most female guards. He signed some letters from jail “the 20th hijacker.” The previous year, he had given himself a “birthday” party to celebrate 9/11. He often wrote “Death to America” on his laundry bag.

  How could I interview him? I had already managed to meet the jail’s other high-profile terrorism supporter: Taissir Rajab Al-Tamimi, a professor of Islamic law who was later given life for soliciting and providing material support for terrorism. I encountered him at the medical clinic early in my stay. I was having some stitches removed from my arm; he suffered from asthma. I recognized him immediately from his photos. He was pleased to meet me, he said agreeably. “I’ve read a lot about you.”

  “And I’ve written a lot about you,” I replied noncommittally.

  When he complained about the quality of the books on the circulating carts, I said that as the jail’s newly appointed part-time librarian, I would try to include more interesting selections on the cart. I chose The Federalist Papers, attaching a sticky note to the book with his name on it, hoping he would spot it and would “read the arguments in favor of constitutionally enshrined freedom carefully.” I was punished with a four-hour lockdown. Communicating without authorization with prisoners in another cell is strictly forbidden.

  Despite the reprimand, I decided to add “Interviewing the Moose” to my list of “reporting” assignments in jail. But how would I get to the fourth floor to ask him whether he was, in fact, the twentieth hijacker? Like working in the laundry and organizing books in our library, plotting this unlikely encounter helped pass the time. After several weeks, I devised a plan. Women laundry workers distributed freshly washed sheets and towels on carts once a week to prisoners on other floors. I would trade some M&M’s for a chance to distribute the laundry on the day it was sent to the fourth floor. When the deputy unlocked his cell unit’s door, I would give Moussaoui his sheets and towels and pop the question: Was he a member of Al Qaeda and part of the 9/11 plot? My plan might have worked. But by the time I was assigned to distribution duty on Moussaoui’s floor, Patrick Fitzgerald was en route to the jail to begin negotiating my release in exchange for my cooperation in the Plame case. I never got to meet
the Moose, who is now serving a life sentence without parole in a maximum-security prison in Colorado.

  * * *

  Until mid-August 2005, our legal strategy had been fairly straightforward: I would stay in jail until the grand jury expired in late October. By then, Floyd Abrams predicted, Fitzgerald would either file charges against an alleged leaker or close his investigation and I would go home. Since the purpose of sending me to jail was to coerce my cooperation, we figured that I would have demonstrated by then that I could not be forced into testifying about a source.

  Over time, Bob Bennett grew increasingly opposed to the strategy he had always disliked. It was his skepticism about almost everything that had attracted me to him when we had met in Washington the previous year. He was then representing a major bank involved in the government’s Iraqi-related oil-for-food corruption investigation and had also represented Bill Clinton. For some time, Matt Mallow, a close friend and a senior partner at Skadden, Arps, had been urging me to expand my legal team. Floyd and Susan Buckley were brilliant First Amendment lawyers, he said. But I needed a lawyer with Washington and criminal expertise, someone who had no other client in this affair but me. For months I had resisted Matt’s advice. The paper’s goals and mine would always be the same, I told him. I could not imagine a situation in which our interests would diverge. But after Judge Hogan ruled me in contempt of court in October 2004, I wanted a second opinion. I asked Matt if he would arrange a meeting with Bennett.

  “Protecting sources is the lifeblood of independent journalism,” I told Bob one December night when we met at Matt’s office. “For the paper and me, that cause is sacrosanct. The Times and I are inextricably bound by and committed to it.” We would never disagree.

  Bob frowned. “You don’t know that,” he warned. “Besides,” he added, “I don’t want to represent a ‘cause.’ I want to represent Judy Miller.” Keeping me out of jail, and if that was impossible, minimizing the time I spent there were the best ways to protect me and advance the cause. Bob told me there was a good chance I would be spending far more time in jail than I was being led to believe. He knew Fitzgerald. He was a dog with a bone. He would not give up. He had known Judge Hogan for years. He would not free me in October if Fitzgerald opposed it.

  As summer turned to fall in jail, Bob’s negotiations with Fitzgerald were not going well. Though Fitzgerald had not disclosed his intentions, Bob feared that he was preparing to empanel a new grand jury to force my testimony about all my possible sources. That might mean spending eighteen more months in jail, as Bob had initially predicted. He wanted my permission to call Joe Tate, Libby’s lawyer, to see whether he had changed his mind about granting me a personal waiver of my confidentiality pledge now that I had spent so many weeks in jail.

  George Freeman, the Times lawyer, visited me from New York a few days later to oppose contacting Tate. Calling Libby’s lawyer would be seen as a sign of weakness. Fitzgerald was bluffing, he assured me. Though Floyd was less certain, George conceded, both he and Floyd were convinced that Judge Hogan would not let Fitzgerald keep me in jail after October. It would be too “controversial.” The American press corps would rebel.

  I felt unsure what to do. I doubted that I could count on the solidarity of the American press—half of which seemed to support Joe Wilson’s stated desire to see Bush punished for the ill-fated Iraq War and Karl Rove “frog-marched out of the White House in handcuffs,” as Wilson had demanded. Every other reporter who was subpoenaed had cooperated—all the “grandees” of our profession—several without even getting a subpoena.6

  Despite this, I did not want to defy my paper’s lawyers. I refused to let Bob call Libby’s lawyer. Even if his assessment of my legal peril was correct, Fitzgerald had not agreed to limit his questioning of me to one source, as we insisted. If Fitzgerald would not agree to such restrictions, contacting Libby’s lawyer was pointless, I argued. We needed more “reporting” about my ambitious prosecutor’s intentions, I told Bob.

  Without my knowing it, Bob had asked a mutual friend to help address my questions. On August 22, Stan Pottinger, who had been assistant attorney general for civil rights in the Nixon administration, brought me some disturbing news. His visit coincided with a dubious milestone: on that day, I had spent longer in jail to protect sources than any other American newspaper journalist.7

  Stan delivered his dispiriting assessment in the cramped, airless cell as coolly as possible. Fitzgerald was no longer investigating criminal culpability for the leak of Plame’s identity and was now focused on possible perjury by one of the president’s men. He was determined not to end the inquiry without a scalp and would not close his investigation without my testimony. If I continued refusing to cooperate, he would extend the existing grand jury or empanel a new one. And he was prepared to increase the pressure by charging me with criminal contempt of court on top of civil contempt, which could keep me in jail for five years and result in a felony conviction. “Trust me,” Stan concluded. “Fitzgerald is not bluffing.”

  The prospect of spending so much more time in jail made me rethink my options. It also made me think about Jason. I had assured him that I would be in jail for only a few months. When jail seemed unavoidable, I had given him a puppy to keep him company: a willful black cockapoo he had named Hamlet. I encouraged him to take the Mediterranean cruise we had planned that summer.8 But these were gestures. I had never really consulted him about my decision not to reveal my sources. Faced with the prospect of continuing confinement, I felt guilty about not having discussed such a crucial matter with him. That week, we fought on the phone after I had told him gently that I might be in jail after October. “We’re in this together,” he said. “You must get out of there. You cannot stay.”

  Despite my loyalty to the paper, I felt troubled and believed I owed it to Jason and myself at least to see whether Libby would now grant me the waiver he had given Matt Cooper. The decision was still tough. Until then, the paper and I had seen eye to eye on my case and our strategy. I had assured Arthur that I would never cooperate with Fitzgerald, since I couldn’t imagine that Libby would ever really want me to testify. No waiver he gave would ever be truly voluntary, we had agreed. Now, for the first time, I considered the paper’s stance unduly rigid. Perhaps Libby was no longer in legal jeopardy. Perhaps Fitzgerald was focusing on Rove or another of the president’s men. Faced with the prospect of many more months, possibly years, in jail, why should I not ask whether Libby had changed his mind about the waiver? Why should I stay in jail if I didn’t have to?

  After sleepless nights, I authorized Bob Bennett to call Joe Tate to see whether Libby had shifted his view on the waiver. After they spoke, Bob came to the jail. He seemed troubled. Tate had told him that not only was Libby willing to grant me a waiver, but he had always been willing to do so.

  How could that be? Floyd had been adamant that Tate had said exactly the opposite the year before. I wasn’t sure what to think. If Tate was telling the truth, then I had gone to jail based on a misunderstanding. But if he was now rewriting history to protect his client from being accused of obstructing justice by pressuring me not to testify—which is what Floyd believed—I could hardly call the waiver he was now willing to give me “voluntary.”

  Bob urged me not to dwell on the past. What Libby had authorized, or not, the previous year did not matter. He was now explicitly urging me to testify.

  But how could I be sure that Libby’s decision was voluntary? I wanted to hear directly from him.

  “But you’re in jail!” Bob exclaimed. “He can’t exactly drop in for coffee!”

  No, he couldn’t, I agreed. But could he not write to me? Or could I not speak to him by phone? To be sure that Libby’s waiver was voluntary, I needed to hear from him directly, I told my exasperated lawyer. I was adamant because Bob had told me that Fitzgerald had written to Libby, warning him against trying to persuade me not to testify. How could Libby possibly provide a voluntary waiver with Special Counsel Fitzgerald b
reathing down his neck?

  On September 19, Libby telephoned me. Tate and Bob Bennett were on the conference call. In one of the most awkward conversations I have ever had with a source, Libby said he had always been willing to grant me a waiver. He wanted me to testify. He had written the letter I had insisted on to show me that his waiver was voluntary. The letter itself caused a stir. Libby had published a racy novel set in prewar Japan a few years earlier. His letter was filled with literary flourishes.

  “Your reporting, and you, are missed,” he began. While he admired my “principled stand,” I had to get back to “what you do best, reporting.” “Out West, where you vacation, the aspens will be turning. They turn in clusters, because their roots connect them. Come back to work—and life,” he wrote. The allusion to the aspens was a reference to my having bumped into Libby with Jason at a rodeo in Jackson Hole, Wyoming. He had been wearing jeans, a cowboy hat, and sunglasses. I hadn’t recognized him. In fact, I had interviewed Libby only three times, one of those on the phone.

  His letter insisted that he had wanted me to testify all along. “I believed a year ago, as now, that testimony by all will benefit all,” he wrote me, noting that “the public report of every other reporter’s testimony makes clear that they did not discuss Ms. Plame’s name or identity with me.”

  That was odd, I thought. Was Libby suggesting that my testimony would echo the reporters who had sworn that Libby had not discussed Plame’s job with them? But my memory, as well as entries in my notebook, suggested that we had discussed her. What did Libby mean? Did he remember our conversation differently? Did he want me to lie?