The Story (38 page)

Jail reminded me of how blessed I was. As the judge said and my lawyers reminded me, I was the only inmate with a key to the jail. If I agreed to testify, I could leave anytime. I was being incarcerated not for a crime but for a matter of conscience and principle. Professionally, too, I was fortunate. I had gotten to the top of a demanding, rewarding profession; I was supported in jail not only by the
Times
but also by many journalists in America and abroad. Bernard-Henri Lévy, Günter Grass, Pedro Almodóvar, and other prominent European intellectuals signed a petition circulated by a Paris-based group called Reporters Without Borders that called my jailing a “miscarriage of justice.” The editor in chief of the Russian newspaper
Izvestia
wrote me a letter, which hangs in my office, expressing his staff's sympathies for my incarceration and gratitude for defending freedom of speech and the press.

Harry Hurt III, who wrote a column for the
Times
, printed up “Free Judy” T-shirts. Fellow journalists Steve Byers and Robert Sam Anson
plotted a jail breakout. I received letters and gifts and money (which went to a fund to provide free legal counsel to other journalists fighting government subpoenas), many from people I had never met, who praised me for standing on principle. Unlike so many inmates, I had a loving husband. My paper paid my hefty legal fees, with the cost of the lawyers and trials totaling more than $1 million, they told me.

I had a steady stream of well-wishers during the thirty-minute visiting period six evenings a week. I saw over a hundred of them, including soldiers from my embed in Iraq and First Amendment activists. My visitors held wide-ranging political views: from Richard Clarke, the former counterterrorism chief whose book had assailed President Bush, to John Bolton, Bush's neoconservative ambassador to the UN.

The
Times
had encouraged me to meet with those who could not only help publicize my case—like Senators Bob Dole, Arlen Specter, and Chris Dodd—but also advocate for a media shield law that would protect journalists from being jailed or hauled before federal grand juries and forced to reveal sources. Senator Specter, a Republican, had an impressive ability to get quickly to the point.

“Tell me,” he asked. “What is this investigation about?”

“I was hoping you could tell me, Senator.”

Specter was aware that I had never written a word about Valerie Plame.

Was prosecutor Fitzgerald “political”? Specter asked. Did I think that his pursuit of key Bush officials was motivated by ideology?

“I suspect he wants to be attorney general or head the FBI,” I told Specter.

“He would have to get confirmed first,” the senator said dryly. Watching Specter's face, I somehow doubted that would happen if he was in the Senate.

Did I think Fitzgerald even had a case?

“Not really, Senator,” I replied, unable to elaborate, since I had been warned that our phone chats through the glass partition window were monitored. In fact, I wasn't sure whether Plame, whom I had never heard
of prior to Joe Wilson's charge against the White House, was covered by the 1982 Intelligence Identities Protection Act making it a crime to disclose a CIA agent's identity, whose violation Fitzgerald was investigating.
¹
Fitzgerald himself had avoided asserting that Plame was covered by the law—the supposed cause of his investigation.

Specter asked whether I had been offered a waiver to testify, similar to what
Time
's Matt Cooper had received from his source.

I recalled Matt's stunning statement in the courtroom the day I was sentenced. Neither Matt nor his lawyers, Floyd Abrams and Richard Sauber, another old friend, had warned us that they had just made a deal with Fitzgerald. Until Matt addressed the judge in the packed courtroom that day, I had thought that he and I were in this First Amendment fight together. After recounting how he had “kissed his six-year-old son good-bye” and told him he “didn't expect to see him for some time,” Matt said that his source had just given him his “expressed personal consent” to testify, a waiver directly from his source to him.

Bob Bennett, my lawyer, grasped my hand as Matt sat down. He viewed Matt's last-minute deal with his confidential source skeptically, as did many journalists. But I was pleased for Matt. In an article he later wrote for
Time
, Matt disclosed that it was Karl Rove, President Bush's senior political adviser, who had first told him that Wilson's wife was a CIA officer who had helped send Wilson to Africa. Matt also said that when he asked Scooter Libby, the vice president's chief of staff, about Rove's assertion that Plame worked at the agency and had helped send him to Africa, Libby replied he had “heard that, too.” At the
Times
, Libby's vague formulation would not have qualified as confirmation from a second source.

Shortly before Matt's courtroom appearance,
Time
's editor in chief Norman Pearlstine had infuriated many journalists by turning Matt's emails and notebooks over to Fitzgerald. Pearlstine had called Fitzgerald a “modern Jimmy Stewart” and a “dedicated, brilliant public servant” who was “tall, imposing, unfailingly polite and laser-focused on the issues.” He argued that given the
Branzburg
decision, the law required
Time
and its reporter to cooperate with the government's inquiry.
²
Pearlstine was of the view that
Time
owned its reporter's notes and emails. Without the backing
of his magazine, and with both of his sources having specifically waived his pledge to them to keep their identities confidential, Matt's refusal to cooperate would have been pointless. Still, I suddenly felt very alone in this fight.

I did not have such a waiver, I told Senator Specter. If at any point my source had given me an explicit, voluntary waiver of my confidentiality pledge, and if prosecutor Fitzgerald had agreed not to ask me about other topics or my other sources, I would not be in jail.

I recalled that meeting with Floyd Abrams almost a year earlier, when he had briefed me on his discussion with Joe Tate, Scooter Libby's lawyer. Floyd had told me that once Tate grasped that my testimony might not exonerate Libby, he had refused to give me a waiver comparable to what Rove had given Matt. All members of my fractious legal team agreed that given what Floyd had told them, contacting Libby or Tate a second time to seek a waiver might be perceived as threatening on my part. Floyd's strategy was to argue after the grand jury ended on October 28 that nothing would be gained by keeping me in jail longer, since four months had proven I would not be coerced into testifying.

Bob Bennett, whom I hired in December 2004, had never bought that strategy. But he was stuck with it. We had settled on it months before he joined our legal team. Because Bob knew Judge Hogan well and had interacted with Fitzgerald, he was charged with handling the negotiations with Fitzgerald over what he would ask me if I ever got a voluntary waiver from my source and agreed to testify. Our goal was to persuade Fitzgerald to limit his questioning of me to what we called the three “ones”:
one
source,
one
subject matter,
one
time. By the end of August, after almost two months in jail, we had not succeeded.

Though some critics would later blame Libby for putting me in jail, Fitzgerald's unwillingness to narrow the scope of his interrogation offered me little choice. Had I agreed to testify about my conversations with Libby about the Wilsons, I could not risk being questioned about other sources, or about whether Libby and I had discussed
other
top-secret information that would be potentially far more damaging to him. I could not tell a grand jury that we had discussed the highly classified version of the October National Intelligence Estimate on Iraqi WMD that the Bush White House had cited as justification for the Iraq War. Only later would
I learn that by the time I interviewed Libby, Bush had already unilaterally declassified portions of the intelligence assessment so that Libby could disclose them to counter the claim that his administration had lied or exaggerated WMD-related intelligence.

Almost no one at the
Times
except my lawyers, Arthur Sulzberger and his top corporate executives, and, on the news side, Keller and Abramson, knew about these negotiations, much less my concerns about Libby's legal jeopardy. I had wanted to keep Keller and Abramson out of the loop, but Arthur had insisted they be kept informed. They managed the news, including stories about my case. I sensed that tension was building within the newsroom over the extent to which
Times
reporters were being permitted to investigate my case, our legal strategy, the identity of the sources I was protecting, and other competitive aspects of the story.

Most colleagues were enormously supportive of me while I was in jail, especially my closest friends at the paper—Jeff Gerth, Geri Fabrikant, David Barstow, and Claudia Payne—all of whom were early visitors. Jill came to see me. So did her close friend Maureen Dowd.

Keller visited. Having defended me in public as a “tenacious,” “courageous” fighter for a free and independent press, he repeated his praise over the house phone in jail. On the day that Al Qaeda struck in London, he told me, he shared what must have been my intense frustration over languishing in jail in the wake of the attack. “I thought: if you weren't in jail, I'd have you on the first plane out to London.”

I was thunderstruck. The executive editor who had tried to bar me from national security reporting for being too “passionate,” as he put it, too much of a “lightning rod,” was lamenting my absence from his staff. I was an “indispensable” part of the paper's investigative engine, he told me.

Dispirited by jail, I wanted to believe Keller.

Arthur Sulzberger visited shortly before taking off to climb Machu Picchu. He would follow my case from Peru, he promised. He was “proud” of me. The paper would continue to write news stories and editorials about the First Amendment issues at stake. “We won't forget you in here,” he pledged.

Bill Safire cheered me by holding up against the glass partition a copy
of his testimony on Capitol Hill about the need for a federal shield law. “May the person monitoring this conversation get ear cancer,” he boomed into the jail phone, a variation of the ancient Jewish curse.

Though he was ill and in great pain, Abe Rosenthal, too, came down from New York. Accompanied by Shirley Lord, his indefatigable wife, an author and editor at
Vogue
, he managed to balance himself on the small stool in the booth behind the partition and regale me with stories about Myron Farber, the first and only other
Times
reporter he had visited in jail. The New Jersey jail had permitted him to sit in the same room with Myron during his forty-day stint,
³
Abe complained. “I used to bring him steak!” he reminisced.

As my days in jail turned into weeks, and then months, I began to wonder why the news department had virtually stopped writing about my case. Though the editorial page ran about a dozen editorials on different aspects of the controversy, the news stories that Arthur and Keller promised did not appear. I was losing energy despite my effort to exercise, stay fit, and assume a cheerful front. Though I had stopped throwing up from the food, I was still losing weight: twenty pounds by early September. I hadn't been this thin since Iraq.

The low point were two lockdowns: the first a month after my arrival. I was awakened one night by deputies who seized all the notes I had written in jail. An inmate had complained that I was “snooping” on her and invading other inmates' privacy. Though jail officials were not supposed to read my memo pads, since they were clearly marked “Legal Notes,” as my lawyers had instructed me to do, two deputies pored through them, hunting for evidence that I was secretly recording information about fellow inmates without their permission. Fortunately, years of note taking for the
Times
had trained me to mark the date, time, and place of my jailhouse interviews, and the terms under which people were speaking to me: “on the record,” which meant I could identify them by name and tell their stories; on “background,” which meant I could use their stories but not their names; or “off the record,” which meant I could use neither their names nor the information they provided without corroborating it independently, which, of
course, was impossible in jail. All the women whose stories I had recorded had spoken to me voluntarily. My notes were returned, but I became even more cautious.

Another low point came in late August when I was put in isolation for twenty-four hours for having hoarded food: apples. The jail forbade storing food in our cells, but I couldn't resist keeping three apples I had traded for packets of popcorn. I hadn't eaten fresh fruit in two months, so the mealy Delicious apples I once would have spurned were irresistible. The deputies found the contraband during an impromptu inspection one night.

Two lockdowns in less than sixty days—I was far from a model prisoner. Deputies warned me that if I continued pushing the rules, I might wind up in “administrative segregation”: a permanent lockdown. I feared being confined for most of the day and night in my tiny cell.

The apple lockdown coincided with yet another downer: the arrival of dozens of angry postcards cursing me for protecting President Bush and the other “war criminals.” The cards repeated a message suggested by a right-wing libertarian group: because I was “covering” for Bush's liars, I deserved to “rot in jail” for the rest of my “natural life.” Not for the first or the last time, the Plame scandal enabled the left to find common ground with the radical right.

No paper or internet site was as consistently hostile as Arianna Huffington's
Huffington Post
, her relatively new website that was fixated on generating “buzz.”