SEPTEMBER 9, 2015
IN THE EPILOGUE of her memoir, The Story: A Reporter’s Journey, Judith Miller declares that she has “tried to review [her] mistakes, to correct errors, add new facts, and update them in the fullness of time.” This final manifesto, delivered in the concluding paragraphs of her weighty book, is essentially its mission statement. By writing about, closely scrutinizing, and heavily commentating on the drama surrounding her departure from The New York Times, Miller attempts to set the record straight and prove why her version of events is the accurate one — the one that readers should accept as the truth. She attributes writing this memoir to a higher journalistic principle, asserting that “[c]orrecting and completing the record are part of the pact that journalists make with readers.”
Miller’s intentions for writing this memoir aren’t in question: readers recognize that Miller strives to redeem herself from rumors, refashion the narrative in her favor. What has been, and what continues to be, questionable is the accuracy of her writing. This — even supported by the purest of intentions — cannot be redeemed by writing a memoir.
Throughout most of the memoir, Miller examines her failure as a reporter. She explains why she reported on weapons of mass destruction in Iraq, and confronts the consequences of that reporting for her, personally and professionally. Her primary defense is that she merely reported what her sources told her. She asserts, “The earlier stories were wrong because the initial intelligence assessments we reported were themselves mistaken — not lies or exaggerations.” When discovering that her sources were wrong, and therefore her heavy reporting on the subject was also, Miller paints herself as a scapegoat. She states that “[b]loggers and other media critics” portrayed her as “either a closet neocon bent of taking the country to war, or a credulous dupe spoon-fed by Ahmad Chalabi [her source] and the White House ‘shillsters’ — a ‘useful idiot’ with ‘blood on [her] hands.’” Miller is certainly correct in asserting that her reporting did not cause the war. To place the blame for an executive decision by the commander in chief on a single woman who is not an elected official, appointed spokesperson, political pundit, or supernatural force endows her with a power she does not and cannot possess. Journalists do not create news — they report news.
Despite this, Miller is blamed. According to her, the leadership at The New York Times “tried to blame the paper’s alleged reporting failures on [her].” In May 2004, The New York Times, under the leadership of Bill Keller, ran a note that implied that Miller “had written only stories that supported President Bush’s assertion that war was justified because the intelligence community had concluded that Saddam was hiding unconventional weapons.” Though she is never explicitly named, this note, among others, “scars her reputation.” Miller claims that this note — one that blatantly exposes the flaws in her reporting — implied that she “had written [her stories] to build a case for the war” and that “that [her] stories had a political agenda.” She claims that she “had never taken a public position, a mortal sin for a Times reporter.” But political agendas and public positions, however subtle or nuanced, pulsate beneath any story. Telling a story without a slant is impossible, regardless of whether her agenda involved a position on the war itself, or just a blind desire to get a scoop on a story that was clearly being peddled to the American public through journalists like her who were too eager to see the red flags, in the story itself, or the sources selling it.
Miller argues that her inaccurate reporting “spark[ed] a sustained campaign against [her] and [her] reporting.” While that may be how she experienced what happened, another way to look at it is this: the journalistic profession is built upon a clearly defined set of parameters, beaded links. A journalist is only as good as her reputation. Her reputation is only as good as her reporting. Her reporting is only as good as her sources. Break a link along the chain and the pretty beads tumble forth, away, beyond your grasp.
The second struggle that Miller writes about is the time she spent in federal prison for protecting her sources. This account is less defensive than the first half of her memoir and certainly more intriguing. For me — an ardent fan of the First Amendment — this is where Miller’s fame resides. As a college student, nearly a decade ago now, the journalist who went to jail fascinated me. The notion was startling, provocative, glamorous even. Miller’s story is still fresh. The drama surrounding her refusal to divulge her sources — conversations with attorneys, contempt of court, and a goodbye to her husband — all feel palpably relevant still. This is probably because although Miller’s imprisonment raised a heightened awareness for the need for a federal shield law that would protect journalists, her imprisonment did not actually achieve obtaining this federal shield law. Journalists can still be sent to federal prison for refusing to share their sources.
Placing Judith Miller — and imprisonment for her refusal to divulge her sources to a grand jury — within a historical legal context here provides a richer understanding of Miller’s efforts. Miller knew that her refusal to provide a source was not protected by the First Amendment. The legal precedent for this — which is still good law today — is the Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972). In that case, the split Court, led by Justice White, held that requiring a journalist to appear and testify before state or federal grand juries does not abridge the freedom of speech and press guaranteed by the First Amendment. Unlike attorney-client privileges, spousal privilege, and psychotherapist-patient privilege, no privilege protects agreements, conversations, discussions between journalists and their sources. Quite simply, the Court held, that the First Amendment does not relieve journalists “of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation.”
The journalists in Branzburg argued that if reporters were forced to respond to subpoenas, identify sensitive sources, and divulge confidential information, then the sources would refuse to furnish newsworthy information in the future. In essence, journalists argued that a federal shield law was necessary because without this protection sources would be less willing to share news. The Court in Branzburg disagreed with this notion, stating that “[r]eliance by the press on confidential informants does not mean that all such sources will in fact dry up because of the later possible appearance of the newsman before a grand jury.” The Court characterized the relationship between the press and its sources as a “symbiotic one.” Sources need journalists as much as journalists need sources.
Miller — and her team at The New York Times — hoped to change the law in Branzburg. This was not the first time that The New York Times challenged the government. In the early 1970s, Daniel Ellsberg leaked classified information to The New York Times from the United States Department of Defense regarding the Vietnam War. Although the Times was aware it could possibly face repercussions under §793 of The Espionage Act of 1917, the paper nonetheless published the information. Soon after publishing a portion of it, the government sought a restraining order that would stop The New York Times from publishing anything further. In the highly celebrated Pentagon Papers case (New York Times Co. v. United States, 403 U.S. 713 (1971)), the Supreme Court held in a per curium opinion for The New York Times. The Court declared that “any system of prior restraints” bears “a heavy presumption against its constitutional validity.” The Court further explained that to justify the necessity of a prior restraint on publication, the government would have to prove that publication would cause “grave and irreparable damage,” “a heavy burden.” In refusing to reveal her sources, Miller and The New York Times hoped to herald a new law in favor of journalists.
When Miller became aware she could be subpoenaed to testify regarding her sources in the Valerie Plame affair, she immediately consulted the then New York Times assistant general counsel George Freeman (full disclosure: I worked briefly with Freeman at the Media Law Resource Center) and told him she “could not answer questions from a grand jury about [her] discussions of top-secret information without violating a pledge [she] had given [her source].” She said she could not risk an open-ended prosecutorial fishing expedition into her sources and “comply with the subpoena, even if it meant going to jail.”
Miller is never naive, and so her imprisonment is not an unforeseen consequence, but a calculated decision. This does not detract at all from her bravery. In her memoir, she writes that although “some critics wrote [she] was eager to go to jail as a First Amendment martyr, nothing was further from the truth.” Eagerness to be imprisoned aside, Miller is still, in some sense, a First Amendment heroine. Although she describes herself as “the only inmate with a key to the jail,” and although she states that she was “being incarcerated not for a crime but for a matter of conscience and principle,” she still was an inmate and still was incarcerated. No one can say Miller does not push herself to the limits. This requires courage.
Once in prison, however, the situation changes. Her source gives her a waiver, allows her to testify, and Miller is eager to oblige. If her source no longer demands protection, why should she remain in prison? She misses her husband, misses her life, and wants, understandably, out. However, despite this, her attorneys at The New York Times urge her not to testify because testifying would mean that she “had gone to jail for nothing,” would make them “look weak.” Testifying meant that another grand victory for journalism would be abandoned. While Miller wanted to testify, the paper wanted her to remain in prison so that they might achieve more than Branzburg. Miller testifies anyway, and is forced to resign from The New York Times soon thereafter.
Her relationship with the publisher and her old friend, Arthur Sulzberger Jr. was irreparably scarred by her decision, Miller writes. When she questions Sulzberger, asks him what she has done to “offend him or betray the paper” (after he allows an editorial by Maureen Dowd to be published, where she colorfully exclaims that should Miller be allowed to report, “the institution most in danger would be the newspaper in your hands”) he “mumbles” that she “hadn’t stayed in jail as [she] had promised.”
Ultimately, this is a memoir about failed relationships within one of the most prestigious institutions in the United States. Throughout the book, Miller paints herself as a determined journalist. This determination is intriguing and even inspiring when reading about her adventures as a young reporter in the Middle East at the beginning of her memoir (possibly the most fascinating part of her book — I wished for more details here, of Miller in her heyday). However, it quickly becomes clear that this determination does not translate into collegiality, congeniality, or genteelness. Aggression gets the scoop. She admits that she “did not appreciate the importance of building a network of friends inside the Times.” She “tended to regard time spent at the coffee cart with colleagues as goofing off since [she] was not reporting.” While her single focus is admirable, her prioritization of the story is laudable (“the story would always come first”), her relationship with other reporters, her editors, her newspaper, and the public withers.
The problem with The Story exists in its form: the memoir. Miller writes under the impression that her account provides probing examination of her personal story; however, because of the memoir’s highly intimate and volatile nature, Miller cannot separate herself from her subject. Although she repeatedly references notes that she took following controversial incidents, these notes — her own records — do not detract from the bias intrinsic to her work. The Story is not a ruthless journalistic venture as Miller wishes to believe, and wishes to persuade her readers into believing.
Brachah Goykadosh works as a special assistant corporation counsel at the NYC Law Department and teaches as an adjunct lecturer at CUNY, where she was the recipient of the Charles Hirsch Faculty & Staff Award in Fiction. Her work has previously appeared in The New York Times.