Phone Call With Source and Deal Led Reporter to Testify - New York Times

Phone Call With Source and Deal Led Reporter to Testify - New York TimesOctober 1, 2005
Phone Call With Source and Deal Led Reporter to Testify
By ADAM LIPTAK

Two developments drove the decision of Judith Miller, the New York Times reporter jailed for refusing to testify about conversations with a confidential source, to appear before a grand jury in Washington yesterday in exchange for her freedom, she and her lawyers said yesterday.

One was a long phone call with the source. The other was a deal with the special prosecutor in the case.

But three recent letters from people involved in the case debate whether a similar deal may have been available for some time and raise questions about why Ms. Miller decided to testify now.

In essence, the dueling letters give sharply divergent accounts of what was said a year ago when lawyers for Ms. Miller and her source, I. Lewis Libby, Vice President Dick Cheney's chief of staff, discussed the possibility of Ms. Miller's testimony before a grand jury investigating the possibly unlawful disclosure of the identity of a C.I.A. officer.

Mr. Libby's side says he gave Ms. Miller unequivocal permission to testify about her conversations with Mr. Libby concerning his role, if any, in the disclosure of the identify of the officer, Valerie Wilson, also known as Valerie Plame.

In a letter from Mr. Libby to Ms. Miller this month, he expressed surprise that her lawyers had asked him to "repeat for you the waiver of confidentiality that I specifically gave to your counsel over a year ago." He added that he expected her testimony to help him.

One of Ms. Miller's lawyers, Floyd Abrams, wrote a letter to Mr. Libby's lawyer on Thursday in what he said was an effort "to set the record straight." Mr. Abrams acknowledged that the lawyer, Joseph A. Tate, had told him in the summer of 2004 that Mr. Libby had no objection to Ms. Miller's testifying about a meeting with him a year earlier. But Mr. Abrams also said Mr. Libby's lawyer had said that a blanket form waiver Mr. Libby signed at the request of investigators in January 2004 had been "coerced and had been required as a condition for Mr. Libby's continued employment at the White House."

"The message you sent to me was viewed by Ms. Miller as inherently 'mixed,' " Mr. Abrams wrote.

He said Mr. Libby's failure to contact Ms. Miller as the case proceeded had also led her to conclude that he did not want her to testify.

In a third letter, Mr. Tate wrote to Patrick J. Fitzgerald, the special prosecutor investigating the leak, about his conversations with Mr. Abrams. "Over a year ago, I assured him that Mr. Libby's waiver was voluntary and not coerced and she should accept it for what it was."

He added that he understood from his conversations with Mr. Abrams that Ms. Miller's "position was not based on a reluctance to testify about her communications with Mr. Libby" but on journalistic principle and an effort to protect "others with whom she may have spoken."

At least four other reporters have testified in the investigation, which has repeatedly reached into the White House. They all testified wholly or partly about conversations with Mr. Libby, and one, Matthew Cooper of Time magazine, testified about a conversation with Karl Rove, the president's chief strategist. Only Ms. Miller, who never wrote an article about the C.I.A. operative, was jailed in an effort to force her to testify.

The second factor in Ms. Miller's decision to go before the grand jury was a change in the position of the special prosecutor, Mr. Fitzgerald, concerning the scope of the questions she would be asked, according to Mr. Abrams. Mr. Fitzgerald only recently agreed to confine his questions to Ms. Miller's conversations with Mr. Libby concerning the identification of Ms. Wilson, Mr. Abrams said.

But other reporters struck deals with Mr. Fitzgerald last year that also limited the questions they would be asked. For instance, Glenn Kessler, a reporter for The Washington Post, testified in June 2004 on ground rules essentially identical to those Ms. Miller obtained, according to an article in The Post at the time.

Mr. Kessler, The Post said, testified that the subject of Ms. Wilson had not come up in his conversations with Mr. Libby.

A spokesman for Mr. Fitzgerald, Randall Samborn, declined to comment yesterday.

Ms. Miller expanded her legal team as the prospect of jail loomed, and it was a new lawyer, Robert S. Bennett, who initiated the recent negotiations in late August.

Bill Keller, The Times's executive editor, said that it was Ms. Miller's decision to resist the subpoena from Mr. Fitzgerald and to testify after the latest developments.

"It wasn't the paper's decision," he said. "It was hers. We supported her in her decisions. If we thought her decision in either case was frivolous, she wouldn't have had the kind of support she had."

One of her lawyers, George Freeman, an assistant general counsel of The New York Times Company, said the phone call between Ms. Miller and her source had been crucial.

"This was a call," he said, "that lasted about 15 minutes, and Judy could measure the timbre and tone of the source's response and real feelings regarding whether or not he was being coerced and whether or not he really wanted her to testify."

Ms. Miller said nothing about the substance of her testimony after court yesterday and has not publicly named her source. Ms. Miller declined to discuss her grand jury testimony on the advice of her lawyers.

Mr. Abrams said that she provided the grand jury with an edited version of her notes.

"The notes were redacted to omit everything but the notes taken concerning discussions with Libby about Plame," Mr. Abrams said.

"At its core," Mr. Abrams said, "a time had come when it was possible to resolve this. Judy had no desire to continue to endure life in the detention center."