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News Conference on CIA Leak Investigation

Aired July 6, 2005 - 15:18   ET


BOB FRANKEN, CNN CORRESPONDENT: Now, there's some people coming to the stake-out microphone. I'm going to have to turn around and see who we have here. Let's just see who's talking. Floyd Abrams, who's the famous First Amendment lawyer has just come to the microphone. Let's hear what he has to say.
FLOYD ABRAMS, FIRST AMENDMENT ATTORNEY: I'm Floyd Abrams, one of the counsels for Judy Miller. On my left is Bill Keller, the executive editor of the New York Times. Bill will make a statement first and then the two of us will answer questions.

BILL KELLER, EXECUTIVE EDITOR, THE NEW YORK TIMES: As you probably all heard, Judy Miller has been taken into custody to be incarcerated at a jail in the metropolitan area. This is a chilling conclusion to an utterly confounding case.

It's confounding because of the mystery about exactly what crime has been committed and what exactly the special prosecutor hopes to accomplish by the draconian act of punishing an honorable journalist. It's chilling because it's likely to serve future cover-ups of information that happens in the recesses of government and other powerful institutions.

I think that anybody who believes that the government and other powerful institutions should be closely and aggressively watched should feel a chill up their spine today.

One other thing I would like to say Judy's determination to honor her professional commitment is not an attempt to put herself above the law. The law presented Judy with the choice between betraying a trust to a confidential source or going to jail. The choice she made is a brave and principled choice, and it reflects a valuing of individual conscience that has been part of this country's traditions since its founding.

ABRAMS: The only other thing I would say by way of introduction is that Judy Miller today joins a long train of journalists throughout our history who have insisted on protecting the confidentiality of their sources.

That goes back before the Revolution itself, when Benjamin Franklin's brother wound up in jail because he as the editor of a newspaper in Philadelphia would not identify his confidential sources. It carries through the entirety of our history in which journalists have been ordered by one body or another -- state bodies, federal bodies, federal judges, state judges -- to reveal their confidential sources, and they have refused to do so. Judy is an honorable woman adhering to the highest tradition of her profession and the highest tradition of humanity. She has chosen at no benefit to herself and with no desire to be imprisoned a choice, which is to take the burdens, the personal burdens, of being in jail rather than to betray a source to whom she promised confidentiality.

ABRAMS: She should be honored for that. And I think, in history, she will be.

We'll now be glad to answer any questions.

QUESTION: How do you know that no crime has been committed? And how can you be sure that Judy Miller, however well-intentioned, is not protecting a lawbreaker?

ABRAMS: I don't know that no crime has been committed. It may well be that no crime has been committed. It would be a terrible irony in this case if we wound up in a situation in which, as Bob Bennett well said, the only one going to jail is Judy Miller.

We can't know if there's been a crime. We have reason to think, from talking to the people who wrote the Intelligence Identities Protection Act, that this is not the sort of situation which the framers had in mind.

But, beyond that, if a reporter promises confidentiality, the situation may be one in which the reporter has relevant information, relevant evidence. That comes with the territory.

QUESTION: What about the judge's argument that, essentially, Judy is now committing a crime, that she's obstructing justice and she has the option to reveal her source because that person's been waived? What do you guys make of his criticism in that she's not in the honor, in the greatest honor (OFF-MIKE)

ABRAMS: First, as to the issue of waiver, it's important to be clear what the judge was referring to. What the judge was saying was that Judy's source apparently signed a form that was sent around within the executive branch of government which says, in substance, "I yield any promise of confidentiality. I encourage any journalist to whom I have asked confidentiality to cooperate with the authorities."

That's Judy Miller's view, and that's Matt Cooper's view as he expressed it today, that that is not a real waiver.

Whatever it may be legally, whatever legal effect it may have, it is not the sort of thing that someone who has asked for and received a promise of confidentiality does to overcome that promise and to obviate it.

QUESTION: And has Judy asked, as Matt apparently did, for that source to give her a unique and individual waiver?

ABRAMS: I don't know, first of all, if Matt did, and I don't think he said that today. But I don't know the answer as to him.

And I think that Judy, like Matt, had not spoken again to their sources.

I believe what Matt said was that his source contacted him.

QUESTION: Would Judy actually begin to testify if her source did that to her?

ABRAMS: I don't know the answer to what Judy would do if...

QUESTION: Would she consider giving up her jail time in order to testify if her source released her from that (OFF-MIKE)

ABRAMS: The question was: What would happen if her source released her?

I don't know the answer to that because we haven't had to face it. The current situation is that there is no such release.

QUESTION: What do you think of the prosecutor's allegation that the New York Times and Judy Miller have, in his words, been engaged in a martyrdom that actually hurts reporters' efforts to protect their sources?

KELLER: I don't think that's right.

I think if it's possible to salvage any -- to discern any silver lining in this cloudy day, it's that maybe some people who are witnesses of wrongdoing inside government will understand from this the lengths to which at least some reporters are willing to go to stand by the commitment they make when they are doing the reporting.

QUESTION: Mr. Keller, the judge commented on the fact that this wasn't somebody blowing the whistle on a defective nuclear power plant under construction, that it was something else, that it was about a crime.

Should that make any difference in your analysis and Ms. Miller's actions?

KELLER: Well, you know, to paraphrase Donald Rumsfeld, you go to court with the case you have got.

It would be nice if there was absolute clarity about the nature of this case. On the contrary, there's immense mystery about this case.

We have court judgments with redacted pages, and because it's taking place in the venue of a grand jury, there's an awful lot we don't know, including exactly what crime the special prosecutor is pursuing.

So, you know, it's not the ideal case for anybody in this. There are no winners in this.

But the bottom line is that Judy Miller made a commitment to her source and she is standing by it. That's in the highest tradition of this job we all do. QUESTION: Is there any further legal activity that can be taken or is this it, is this the end of the line?

KELLER: I defer to the lawyer.

ABRAMS: Yes, the very successful lawyer before you.

ABRAMS: I suppose the only thing that could be done next is that, at some point before the expiration of that four-month period, a lawyer can go back to Judge Hogan and say, "'Blank' period of time has passed, she has not revealed her source, there's no reason to think that she will, and so we ask you to free her now." That is something that does come up routinely in civil contempt situations.

QUESTION: Do you know where she's going? I wasn't altogether clear from what the judge said. Is she not going to the...

ABRAMS: No, it was not clear.

KELLER: Not D.C. jail.

ABRAMS: Yes, it is not D.C. jail, and it is in D.C. or the environs, but that's all we know.

QUESTION: Do you feel that Time's decision to provide their documents to the prosecutor undermined Ms. Miller's position today?

KELLER: Well, I think Time's decision -- first of all, I think what Time did was a decision made after honest reflection and probably a great deal of agonizing. But I think it was wrong. I can't discern what effect it had on the mind of the judge.

It may well have helped in some way to get Matt a "get out of jail free" card, because it's conceivable that the fact that his notes were now in the possession of the special prosecutor may have prompted this last minute deus ex machina from Matt's source. And I'm delighted that Matt's not going to jail.

Whether Time's actions had any bearing on our case is just impossible to tell. It's pure speculation.

QUESTION: Can you explain the legal technicality, this question of punish versus coercion, and how that plays out here?

ABRAMS: Yes. In criminal cases, people are punished for committing a crime. Judy Miller has not been accused of a crime or convicted of a crime. She has been asked to testify as a witness before a federal grand jury and, because of her views about the First Amendment and her obligations to her sources, has refused to do so.

ABRAMS: So she is being held in civil contempt of court. Judge Hogan used a phrase today which is well-known in the law which is that she has the key to her own cell. That's true. If she were to decide tonight to break her promise to her source, which she will not do, but if she were to do that, she could leave jail. That's not the case, of course, of somebody convicted of a crime. So the theory here is that this is not criminal, less bad, if you will, morally than committing a crime. Unfortunately, because of the way it works in practice, the only fixed time for this is, as Judge Hogan said, either, A, until she reveals the source or, B, the end of the grand jury which, as he said, is in four months. I believe it's October 28th.

So in practice, this would seem to be the equivalent of her being sentenced to jail until October 28th unless at some point prior to that, Judge Hogan can be persuaded that there is no reason that she will reveal her source. In that case, he would or should let her go.

QUESTION: On what legal grounds can they actually convert this into a criminal contempt? I was reading Patrick Fitzgerald's filing yesterday and he hints it strongly that they might actually seek a criminal contempt order and convert the civil contempt into criminal. Could you respond to that?

ABRAMS: The government has it within its power to seek to convert a civil contempt into a criminal contempt. That's what was done in Rhode Island in the Taricani case where he was initially a reporter who refused to reveal his source to a grand jury. He was initially fined a certain amount a day and then the federal prosecutor made this into a criminal contempt proceeding and he was sentenced to a six-month fixed term, six months jailing for criminal contempt which is sort of an aggravated civil contempt.

ABRAMS: If Mr. Fitzgerald wants to take that additional step of criminalizing this, making the clash between the government and the press even worse, even more egregious, even more confrontational, he can do that.

QUESTION: Were you surprised at the judge's comments likening it or actually calling it an obstruction of justice? Did you think that was out of the realm of what you expected and how other judges you've been before...

ABRAMS: I was sorry that Judge Hogan indicated that he views this as in some way akin to obstruction of justice. What Judy has done is, as I've said, in the tradition of journalists throughout our history.

And I'll say another part of that tradition has often been that journalists were punished for their position. We win some of these cases, but throughout history we have lost a lot more than we have won for journalists in situations like this. Judy was well aware of that and well aware of the risks from the start.

KELLER: Thank you very much.

DANA BASH, CNN ANCHOR: And welcome back. You have been listening to a press conference of the attorney of Judith Miller, a "New York Times" reporter who was just taken off to jail after refusing to give up her sources.

Now you're seeing Matt Cooper of "Time" magazine walk up to the microphones. He is a "Time" magazine reporter who did an about face in the courtroom. Let's listen.

MATT COOPER, "TIME" MAGAZINE: This is a sad day not only for journalists, for our country. It is a sad time when two journalists who were simply doing their jobs and trying to keep confidences and report important stories face the prospect of going to prison for keeping those confidences.

It is a very sad day.

My heart goes out to Judy. I told her, as she left the court, to stay strong.

I think this clearly points out the need for some kind of national shield law. Most states have some protections for journalists, as you know. Forty-nine states have protections for journalists. There is no federal shield law, and that's why we find ourselves here today.

And I hope Congress, which is considering a federal shield law sponsored by Republicans and Democrats, will consider it so that we don't have to go through another day like this today. It is a very sad day.

Last night, I wrote out a statement for the court, telling the judge that, respectfully, that I'm not seeking any special favor, but that I would remain in civil contempt because, even though "Time" magazine had, over my objections, turned over my notes and e-mails to the special counsel under a court order, and even though the prosecutor has all that information now, I wanted -- I was prepared to go and remain in civil contempt, because I had given a word to my source for two years which I have kept, and I have kept my word to that source today for two years.

This morning, in what can only be described as a stunning set of developments, that source agreed to give me a specific, personal and unambiguous waiver to speak before the grand jury.

Now, let me make it entirely clear.

COOPER: I am with Judy, that these government-issued waivers that the prosecutor has been handing out are not worth the paper they're written on.

These government-issued waivers that the prosecutor hands out to people and says, "Sign this" -- they are just not voluntary if your boss hands you something and says sign it.

It's coercive. It cannot be considered voluntary. And I don't think any reporter can take that as a legitimate waiver -- I could not.

QUESTION: Who is that source? And what did you discuss...


COOPER: If I could finish. I could not consider that a legitimate waiver.

And so what I had happen this morning was that, that source gave me a personal unambiguous, uncoerced waiver to speak to the grand jury and it was only then when I was satisfied that, that source was comfortable with me speaking and, indeed, wanted me to speak to the grand jury that I felt free after two years under threat of jail to go speak to the grand jury.

I have kept my word for two years. I have not revealed the source's name and I stand here today to say that.

I will take a couple of questions and then I'm not going to talk about this matter further.


QUESTION: Who's the source?

COOPER: Let me go just one at a time.


QUESTION: Congratulations.

COOPER: There is no congratulations. This is a very sad day.

QUESTION: In terms of the waiver, does it only free you to speak to the grand jury? Are you free to write about your conversation with that source or talk about it publicly, or only to talk to the grand jury about that person and your conversations with him or her?

COOPER: Well, you know, I have kept my word for two years to the source -- it was for the purposes of speaking to the grand jury -- so I'm going to honor that.

You know, really until -- for two years I've kept my word until two and a half hours ago I thought I was going into civil contempt in this court and in fact, this morning had said goodbye to my 6-year-old son and told him, you know, that I wasn't sure when I would be back.

And I had written a statement last night and this was a very sudden development. But I am -- I've kept my word and that word is to only speak to the grand jury about the matter. So I'm not going to discuss the source's identity, the content of the conversations with you here today.


COOPER: Let me just take this gentleman here.

QUESTION: Wasn't the source, in fact, kind of coerced by "Time"'s decision? Once "Time" gave up your notes, he was kind of forced into the position of -- and answer on your own, as a journalist, without counsel.

COOPER: I'm not even sure what the question is.

QUESTION: "Time"'s actions -- didn't it facilitate what happened this morning, I mean, "Time" giving up your notes?

COOPER: Many people -- let me answer the question.

Many people said to me that once "Time," over my objections, chose to hand over all my notes and all my e-mails containing the identity of the source and the substance of our conversation to the grand jury, many people came to me and said, "Well, why don't you go forward now? The cat's out of the bag. The secret is out. Just go forward." I thought long and hard about that, but I did not feel like I had a release from the source to do that.

QUESTION: Did you ever consider resigning from "Time"?

COOPER: And I did not feel like I had a release from the source to do that. So this waiver came to me today. And now that I have that, I'm going to speak to the grand jury.


QUESTION: Bill Keller described the source coming forward to you as a (inaudible) last minute reprieve. Tell me, if you can, without identifying the source, as you said you won't, what were the circumstances that the source said were the reasons that he wanted to come forward and give you the personal waiver?

COOPER: You know, I don't feel like I can get into that now.

But it was a sudden development. It happened this morning after my son left for camp and after I said goodbye to him and before we got to the courthouse.

I really don't want to talk any more about it. I think that's going to be it.




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