The Discerning Texan
All that is necessary for evil to triumph, is for good men to do nothing.
-- Edmund Burke
-- Edmund Burke
Friday, September 30, 2005
Judith Miller and that foiled "Muslim raid"
It was not until I was reading a Hindraker post on Power Line this evening that I recalled a while back that there had been a New York Times reporter who tipped off a Muslim "charity" in New York City that the FBI was about to raid them... but I didn't connect the dots; instead a Power Line reader, an attorney who wrote Hindraker connected them for me--maybe Judith Miller wasn't really doing jail time over the Scooter Libby or even a Valerie Plame source at all:
UPDATE: A New York lawyer has another theory, which is plausible. It's also light years beyond anything you'll read on this topic in the newspapers tomorrow:
Re: your post this evening regarding Judith Miller. Her change of heart may have been prompted by the prosecutor's agreement to refrain from questioning her not about other sources in the Plame matter, but about another matter in which the same prosecutor filed a motion to compel Miller's testimony before the grand jury.
I wrote you about this several months ago. In a published decision, U.S.D.J. Robert Sweet (S.D.N.Y.) denied Fitzpatrick's motion to compel Miller to testify before a grand jury relating to a leak to Miller about a warrant issued to the FBI for a search of a New York Muslim charity's offices. A source leaked this information to Miller, who, incredibly, promptly contacted the Muslim charity and revealed the warrant prior to the search. Fortunately, no FBI agents were injured when they searched the offices the next day, in what clearly could have developed into a very dangerous situation.
District Judge Sweet (I will resist reiterating my comments regarding him included in my other email to you) denied the prosecutor's motion to compel Miller's testimony about this incident, finding, if you can believe it, that Miller's conduct was permissible because it was merely in keeping with the Times' editorial policy of contacting subjects of upcoming articles for comment prior to publication. In opposing the motion Miller stated that she was contacting the charity to get its comments about an article she planned to write after the search had been conducted. In doing so, of course, she divulged the existence of the warrant and created a situation where the office could have been booby-trapped, or at a minimum crucial evidence destroyed or removed. As an attorney, I found the facts of this case and Judge Sweet's reasoning so disturbing that I continue to be shocked, months later, that this incident hasn't received more public comment. I don't expect the Times to report it, of course, but where is the alternative media? I noted that the prosecutor himself (as opposed to a deputy) filed a long affidavit in support of the application, which I understand is something of a rare occurrence in criminal practice. If you haven't read the decision you really should. I found it to be an eye-opener.
In any case, I always thought that Miller agreed to go to jail not to protect a dubious principle and a source who had already clearly released her from confidentiality in the Plame matter, but rather out of self-preservation, so that she could safely ride out the duration of the grand jury in jail without having to testify about the search warrant affair and her frankly criminal role in that. If my sense about this is correct, she caved once it was suggested that the grand jury could be extended for up to 18 more months. The absurdly public "release" from confidentiality recently restated by Scooter Libby gives her cover, but my hunch is that the real reason for her release from jail is the prosecutor's agreement to limit his questioning of her to the Libby contacts, which puts the search warrant matter off limits.
If you are interested in reading Judge Sweet's opinion let me know and I'll try to locate a copy or a link. The decision was published in the New York Law Journal.
Love the site. It is consistently the most informative, reasoned and interesting blog I have seen.
If that's right, maybe it's good news for Libby: he's not being set up by the prosecutor, he's just the PR fall guy for Miller and her lawyer, who don't want to mention a discreditable incident about which the public knows nothing. I hope that's the right explanation. It still leaves open, of course, the question of why Fitzgerald seemed to think it was a big deal to get Miller's testimony, if he wasn't interested in the second source.
UPDATE: A New York lawyer has another theory, which is plausible. It's also light years beyond anything you'll read on this topic in the newspapers tomorrow:
Re: your post this evening regarding Judith Miller. Her change of heart may have been prompted by the prosecutor's agreement to refrain from questioning her not about other sources in the Plame matter, but about another matter in which the same prosecutor filed a motion to compel Miller's testimony before the grand jury.
I wrote you about this several months ago. In a published decision, U.S.D.J. Robert Sweet (S.D.N.Y.) denied Fitzpatrick's motion to compel Miller to testify before a grand jury relating to a leak to Miller about a warrant issued to the FBI for a search of a New York Muslim charity's offices. A source leaked this information to Miller, who, incredibly, promptly contacted the Muslim charity and revealed the warrant prior to the search. Fortunately, no FBI agents were injured when they searched the offices the next day, in what clearly could have developed into a very dangerous situation.
District Judge Sweet (I will resist reiterating my comments regarding him included in my other email to you) denied the prosecutor's motion to compel Miller's testimony about this incident, finding, if you can believe it, that Miller's conduct was permissible because it was merely in keeping with the Times' editorial policy of contacting subjects of upcoming articles for comment prior to publication. In opposing the motion Miller stated that she was contacting the charity to get its comments about an article she planned to write after the search had been conducted. In doing so, of course, she divulged the existence of the warrant and created a situation where the office could have been booby-trapped, or at a minimum crucial evidence destroyed or removed. As an attorney, I found the facts of this case and Judge Sweet's reasoning so disturbing that I continue to be shocked, months later, that this incident hasn't received more public comment. I don't expect the Times to report it, of course, but where is the alternative media? I noted that the prosecutor himself (as opposed to a deputy) filed a long affidavit in support of the application, which I understand is something of a rare occurrence in criminal practice. If you haven't read the decision you really should. I found it to be an eye-opener.
In any case, I always thought that Miller agreed to go to jail not to protect a dubious principle and a source who had already clearly released her from confidentiality in the Plame matter, but rather out of self-preservation, so that she could safely ride out the duration of the grand jury in jail without having to testify about the search warrant affair and her frankly criminal role in that. If my sense about this is correct, she caved once it was suggested that the grand jury could be extended for up to 18 more months. The absurdly public "release" from confidentiality recently restated by Scooter Libby gives her cover, but my hunch is that the real reason for her release from jail is the prosecutor's agreement to limit his questioning of her to the Libby contacts, which puts the search warrant matter off limits.
If you are interested in reading Judge Sweet's opinion let me know and I'll try to locate a copy or a link. The decision was published in the New York Law Journal.
Love the site. It is consistently the most informative, reasoned and interesting blog I have seen.
If that's right, maybe it's good news for Libby: he's not being set up by the prosecutor, he's just the PR fall guy for Miller and her lawyer, who don't want to mention a discreditable incident about which the public knows nothing. I hope that's the right explanation. It still leaves open, of course, the question of why Fitzgerald seemed to think it was a big deal to get Miller's testimony, if he wasn't interested in the second source.
