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Correction: I appear to have been wrong that the NYT took Libby's name out of this editorial. The NYT has informed me–and others–that the Libby-less column appeared in the first version, not a later one. I have some follow-up questions I'll ask the NYT later. Apologies to the NYT for my mistaken confusion–I do hope such changes are made to reflect clearly in the archives.

But  understand the implications of this correction. For an editorial on the sanctity of source protection–published before the NYT went to SCOTUS to insist that Judy shouldn't reveal her source– the NYT went out of its way to put Libby's name into its editorial. Wow.

As this post goes live, I'll be on a plane, so I'm posting an excerpt of Anatomy of Deceit for the Book Salon.  If the Airline Gods look favorably upon me, I should be joining in shortly.

As Jane and I were discussing which passage of the book to include, we thought it might be nice to help the WSJ out by explaining why it is that Judy Miller got subpoenaed in this case (which, if the WSJ hasn't figured out already, really is readily available in public documents). This also covers a subject Libby doesn't want you to know about–the back flips the NYT and Judy went through to avoid testifying.

I must be onto something with this passage, since the NYT is altering their archives [update--see below] to cover up a tidbit I found while working on it. I guess memory holes aren't just for Orwell anymore.

I've put links in because I had to replace all the footnotes with something! But don't forget to read the footnotes once you get the book.

Miller had never published a story on the Wilsons, though she claims she pitched the story to her editors. But Fitzgerald subpoenaed her after he got Russert's testimony, on August 12 and 14, 2004.

Fitzgerald needed Miller's testimony for several reasons. Libby had testified that he spoke with Miller twice during the week of July 7 — on July 8 and July 12. Libby had testified that Valerie Wilson wasn't the focus of his July 8 meeting with Miller. But since Libby's story about getting the name from Russert now appeared to be untrue, it seemed likely that Libby was hiding something about his meeting with Miller. Perhaps Libby had told Miller of Valerie Wilson's identity, which might mean he had violated the IIPA. Or, as many speculated at the time, perhaps Miller had told Libby of Wilson's identity, in which case there would be merit to Libby's claim he had heard of Valerie Wilson's identity from a journalist after all. In any case, Fitzgerald needed Miller's testimony before he could determine if Libby was guilty of a crime.

When Miller got her subpoena, in the fall of 2004, she had Floyd Abrams, the Times lawyer, contact Libby's lawyer, Joseph Tate, to inquire about a waiver from Libby. According to Abrams, Tate freed Miller to speak-but he added a detail that made Miller hesitate. Libby, Tate said, had testified that he had not told Miller of Valerie Wilson's identity, and certainly not her covert status or name. The problem was, Miller had both the names Valerie Flame and Victoria Wilson in her notes of their meeting. "Did the references in her notes to ‘Valerie Flame' and ‘Victoria Wilson' suggest that she would have to contradict Mr. Libby's account of their conversations?" Miller wondered.

Miller believed that Tate was sending her a message: If she couldn't corroborate Libby's testimony, she should not testify. "Judy believed Libby was afraid of her testimony," the Times reported Executive Editor Bill Keller saying. "She thought Libby had reason to be afraid of her testimony." Abrams even claims that Tate explicitly warned him against Miller testifying. Tate disputes that he gave specific warnings, but he doesn't dispute that he told Abrams how Libby had testified, a remarkable move. This was enough to demonstrate to Miller that truthful testimony would imperil Libby. She therefore considered the waiver to be coerced. So, in spite of the fact that Tate had given Miller the same waiver he gave three other journalists, Miller sat on that waiver and refused to testify.

After that failed negotiation, the Times turned Miller into a First Amendment martyr. Miller's role as a martyr for source protection is an odd one, given that in a story she wrote in April 2003 Miller had exposed a source. Shortly after the article had appeared, the Times had issued a correction and an apology. But in October 2004, the newspaper went on the offensive, publishing an editorial that decried Fitzgerald's attempts to get Miller to testify:

A prosecutor's investigation into an apparent attempt by the Bush administration to punish a political opponent by revealing classified information has veered terribly off course. It threatens grievous harm to freedom of the press and the vital protection it provides against government misconduct 

The same editorial hailing the importance of protecting sources went on to explain why Miller was refusing to testify:

Ms. Miller declined to testify, or to seek a waiver, on the basis that any consent Mr. Libby granted under a threat of firing could not be considered truly voluntary. [my emphasis]

The statement misrepresented several things. It claimed that Miller didn't seek a waiver, though in fact she had initiated conversations to do so. It said Miller believed the waiver to be coerced because Libby signed it under threat of firing, but it failed to mention her belief that her testimony would incriminate Libby. Most stunning was the editorial's mention of Libby's name-even though Libby was not publicly known to be Miller's source at this time! While preaching the need to protect sources, this editorial effectively revealed one.

And then the Times made a curious claim: "The specter of reporters' being imprisoned merely for doing their jobs is something that should worry everyone who cherishes the First Amendment and the essential role of a free press in a democracy."

But the job the Times claimed to be protecting involved, in this case, the propagation of a smear. And therein lies the real problem with the attacks on Fitzgerald in his pursuit of journalists who were leaked information about Valerie Wilson's identity. In all the chest-thumping about the First Amendment and "source protection" and journalists simply "doing their jobs," the very reason for enshrining journalistic privilege got lost. The reporter's privilege of confidentiality is designed to protect those who provide journalists with information of importance to the American public. The idea is to allow whistleblowers to reveal information about corruption or danger or lies without the threat of losing their job..

But in this case, the leaks were made by the powerful-top White House officials-and they were made as retribution, not in any public interest. And they were made in retribution for precisely the kind of activity the reporter's privilege is supposed to protect: someone coming forward with information about mistakes or misjudgments made by the government. Effectively, this situation flipped the First Amendment on its head. Truly powerful people were using journalists as shields to launch attacks on a critic.

(End of excerpt)

So what about the NYT's memory hole, you ask? Well, when I discovered that the NYT had outed Judy Miller's source in an editorial, I sent a link of the editorial to Jeff. I showed it to Safir, my editor. I was sure it named Libby and was so shocked at the discovery I wanted witnesses to what it said. But as of today (1/11/07 at 3:12 ET), here's what the NYT's archives say:

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Somebody has disappeared Mr. Libby!!! 

At which point I panicked, sped across town and accessed something the NYT probably thinks bloggers don't know how to use: M-I-C-R-O-F-I-L-M. What they don't know, of course, is that I did 8 years of pretty intense research on newspapers largely relying on microfilm. You know–microfilm, so you can see what an original newspaper said?

And guess what? When they published this editorial in 2004, they did use Libby's name (working on the scan, but the problem with microfilm is that it often prints in shitty quality). Apparently, Mr. Libby hasn't been disappeared in Lexis Nexis either, as you can see from this excerpt that Duncan Black was kind enough to send me:

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Now why do you suppose the NYT would alter their archive (without mentioning it, mind you), sometime between October 18, when I cut and pasted the passage in an email to Jeff, and now, just a week before the trial starts? [ed: see updates]

Update: There are two versions of the editorial–good suggestion, Swopa. If you go through paid archives, they have not disappeared Mr. Libby.

Update 2: It appears that I am likely wrong about the timing. There appear to be two versions of this editorial, one available publicly, which doesn't mention Libby, and another behind the firewall, that does. AFAIK, I simply accessed a different version of the story last week when I linked this than I did last October.

But consider why this matters. This is an editorial arguing for the importance of source protection–yet it outs Judy's source. The NYT has made one available for circulation. But in so doing, they've hidden the fact that (intentionally or not) they outed a source while arguing for source protection. 

Update 3: Curiouser and curiouser. If you search the NYT archives for "Press Freedom on the Precipice" you only find the firewall one. So they're not showing the publication data (or the existence, even) of the second one. 

Related posts:

  1. Cheney’s Betrayal Made an IIPA Charge for Libby Possible
  2. Hung Out to Dry: One Former VP Chief of Staff
  3. Cheney Interview: Washington Post Losing Its Ability to Report, Too
  4. Cheney Refused to Release the Journalists
  5. Isikoff Doubles Down on His Anonymous Leak from Cheney’s Lawyer