The Story (40 page)

Despite my loyalty to the paper, I felt troubled and believed I owed it to Jason and myself at least to see whether Libby would now grant me the waiver he had given Matt Cooper. The decision was still tough. Until then,
the paper and I had seen eye to eye on my case and our strategy. I had assured Arthur that I would never cooperate with Fitzgerald, since I couldn't imagine that Libby would ever really want me to testify. No waiver he gave would ever be truly voluntary, we had agreed. Now, for the first time, I considered the paper's stance unduly rigid. Perhaps Libby was no longer in legal jeopardy. Perhaps Fitzgerald was focusing on Rove or another of the president's men. Faced with the prospect of many more months, possibly years, in jail, why should I not ask whether Libby had changed his mind about the waiver? Why should I stay in jail if I didn't have to?

After sleepless nights, I authorized Bob Bennett to call Joe Tate to see whether Libby had shifted his view on the waiver. After they spoke, Bob came to the jail. He seemed troubled. Tate had told him that not only was Libby willing to grant me a waiver, but he had
always
been willing to do so.

How could that be? Floyd had been adamant that Tate had said exactly the opposite the year before. I wasn't sure what to think. If Tate was telling the truth, then I had gone to jail based on a misunderstanding. But if he was now rewriting history to protect his client from being accused of obstructing justice by pressuring me not to testify—which is what Floyd believed—I could hardly call the waiver he was now willing to give me “voluntary.”

Bob urged me not to dwell on the past. What Libby had authorized, or not, the previous year did not matter. He was now explicitly urging me to testify.

But how could I be sure that Libby's decision was voluntary? I wanted to hear directly from him.

“But you're in jail!” Bob exclaimed. “He can't exactly drop in for coffee!”

No, he couldn't, I agreed. But could he not write to me? Or could I not speak to him by phone? To be sure that Libby's waiver was voluntary, I needed to hear from him directly, I told my exasperated lawyer. I was adamant because Bob had told me that Fitzgerald had written to Libby, warning him against trying to persuade me not to testify. How could Libby possibly provide a voluntary waiver with Special Counsel Fitzgerald breathing down his neck?

On September 19, Libby telephoned me. Tate and Bob Bennett were on the conference call. In one of the most awkward conversations I have ever had with a source, Libby said he had always been willing to grant me a waiver. He wanted me to testify. He had written the letter I had insisted on to show me that his waiver was voluntary. The letter itself caused a stir. Libby had published a racy novel set in prewar Japan a few years earlier. His letter was filled with literary flourishes.

“Your reporting, and you, are missed,” he began. While he admired my “principled stand,” I had to get back to “what you do best, reporting.” “Out West, where you vacation, the aspens will be turning. They turn in clusters, because their roots connect them. Come back to work—and life,” he wrote. The allusion to the aspens was a reference to my having bumped into Libby with Jason at a rodeo in Jackson Hole, Wyoming. He had been wearing jeans, a cowboy hat, and sunglasses. I hadn't recognized him. In fact, I had interviewed Libby only three times, one of those on the phone.

His letter insisted that he had wanted me to testify all along. “I believed a year ago, as now, that testimony by all will benefit all,” he wrote me, noting that “the public report of every other reporter's testimony makes clear that they did not discuss Ms. Plame's name or identity with me.”

That was odd, I thought. Was Libby suggesting that my testimony would echo the reporters who had sworn that Libby had not discussed Plame's job with them? But my memory, as well as entries in my notebook, suggested that we had discussed her. What did Libby mean? Did he remember our conversation differently? Did he want me to lie?

Floyd and George were stunned by what they considered Libby's about-face on the waiver but acknowledged that it created an opening we had to pursue. Bob began speaking to Fitzgerald about our conditions for cooperating. I still refused to disclose conversations with sources other than Libby. I would not turn over my notebook or emails, Bob told him.

Bob and his team had been carefully reviewing the notebook containing my interview with Libby. While there were references galore to Valerie Plame, there were no other sources identified. And while I had written her name on several pages, even before my interview with Libby—including
a joking reference to “Valerie Flame”—no entry was linked to any of the sources in the notebook. There were only free-floating references, verbal doodles. While I remembered having discussed the Plame-Wilson affair with many of the officials and experts I spoke to, I couldn't remember specifically when or with whom those conversations had occurred.

Given that, Bob said he thought he could make a deal with Fitzgerald and wanted my permission to try. Again the
Times
objected strenuously. But I saw no reason not to pursue what I considered a long shot.

Much to my surprise, Fitzgerald agreed to the deal he had rejected for so long. He would limit his questions and trust us to redact my notebooks and give him copies only of my conversations with Libby that pertained to the Plame-Wilson affair. He would not get the notebooks themselves.

We had won.

The
Times
had other ideas. In late September, all my lawyers met in the prison library to discuss whether I should accept Libby's waiver and Fitzgerald's agreement to limit his interrogation. Speaking for the
Times
, Floyd and George Freeman urged me not to testify. Libby's waiver was not truly voluntary, they argued. Testifying would mean that I had gone to jail for nothing. It would make us look weak. I had to continue to protect my source, even if he was rejecting my protection. George argued that people would not understand why I had changed my mind, even if my source had changed his. Whereas, if I served the full 120 days of my sentence and Fitzgerald then tried to extend my time in jail, it would look as if he were reneging on the judge's ruling and I would then be able to leave jail and testify “honorably.” Anything short of that, he warned, would play badly from a professional “legacy” or “PR” standpoint. Bob Bennett thought this was nuts and told them so. When things got heated, I told the team I would think things over.

I was leaning heavily toward cooperating. Libby's view was key. My willingness to protect a source who had not lied to me depended on what he wanted me to do. Source protection was ultimately the source's call.

The next day, Arthur visited me. In Peru, he had bought me a lapis necklace, which he held up to show me through the window that separated us. He hoped I would wear it when I left jail—on October 28, he said. I
shouldn't cooperate with the inquiry. I should stay in jail until the end of the grand jury as we had agreed, so that we could “win” this fight, despite Libby's waiver and despite Fitzgerald's agreement to limit his questioning. Fitzgerald had “caved” to our requests because the nation's press and public opinion were turning against him, Arthur said. Although the news side of the
Times
had done little reporting on my case since my confinement, he conceded, the editorial side had written fifteen editorials. Fitzgerald would have to let me go when the grand jury expired.

“Arthur, what if you're wrong?”

“Then we'll really open up on them, all guns blazing,” he said.

My heart sank as Arthur, my friend and boss, left the visiting booth. I sensed that if I did not adhere to the course he favored, he would not forgive me.

September 29, 2005

Before the prison van came to a stop, Arthur Sulzberger bounded out of his limo toward it. “Judy! Judy!” he hollered, pounding on the van's windows.

The marshal in front reached for his weapon. “Who's that?” he barked, as his colleague pulled into a parking lot near the Alexandria Detention Center, our release site.

“Don't shoot!” I said. “He's my boss.”

The marshals ordered Arthur to “step back from the vehicle, sir,” as my shackles were removed. When I stumbled out, Arthur threw his arms around me. Separated in jail from those I loved and other visitors by a pane of bulletproof glass, I hadn't hugged a friend other than my lawyers in almost eighty-five days. Then there were hugs all around: a bear hug from Bob Bennett, a more restrained version from Bill Keller.

There was no sign that day of misgivings Arthur may have had about my decision to cooperate with Patrick Fitzgerald's inquiry. At the Ritz-Carlton Hotel in Georgetown, where Arthur had reserved a suite in advance of my grand jury testimony the following day, Jason was waiting for me, smiling. He brought my gold necklace with the tiny ruby pendant, which I had taken off and given him shortly before Judge Hogan accused
me of “defying the law” and sent me to jail. He also had photos of Hamlet, the puppy I had given him. Now doubled in size, Hamlet was twenty-two pounds of energy, he said. I took a nap on the giant bed, wrapping myself in the beautiful cotton sheets—a welcome change from the concrete slab I had slept on in prison.

I learned later that Arthur and Bob Bennett had disagreed that afternoon about the celebratory dinner that Arthur had planned for me that night. Knowing how exhausted I was, Bob had wanted me to sleep and squeeze in a few more hours of grand jury preparation. Though Arthur had reluctantly scaled back his planned celebration, he refused to cancel it. After many champagne toasts, he told our small group that evening what he had told me in jail: he and the paper were proud of me; I was a credit to the
Times
and our profession; a “woman of true courage and principle,” he was quoted as saying. Although he hoped I had enjoyed the massage and manicure he had arranged at the hotel, he joked that I shouldn't get used to such luxury: as soon as my testimony was over, it was back to my desk in New York. At the dinner's end, he gave me a medal that the paper had given only a few reporters—the last of a series of commemorative coins awarded for service to the paper.

Before my release, George Freeman had explained to Arthur diplomatically why I had heeded Bob Bennett rather than the
Times
legal team and agreed to testify. Floyd Abrams told me that Arthur had wanted my case to be what the Supreme Court's 1971 Pentagon Papers ruling had been for his father: a clear moral and legal victory for the
Times.
In that earlier confrontation, Pentagon contractor Daniel Ellsberg leaked the top-secret study of America's involvement in Vietnam to the paper. Nixon's Justice Department asked the federal court to restrain its publication. The Supreme Court decided against prior restraint and for the paper.

In my case, the
Times
was supporting an absolutist (or, as Bennett would later call it, “aggressive”) stance regarding a reporter's privilege, an argument the court had rejected in its
Branzburg
ruling.
¹

George and Floyd, like Arthur, thought I should stay in jail until the grand jury expired a month later on October 28. But both told Arthur they understood my decision. Whether I cooperated with Fitzgerald had to be Libby's call, provided that his decision was made voluntarily.

In jail, I had jotted down what I considered the key features of a “voluntary” waiver and a source's rights and obligations. Oddly, our profession seemed not to have standards on this. First, I wrote, a reporter is honor bound to respect a promise not to reveal the identity of a “truthful” source: a source who hadn't attempted to deceive. Second, such a pledge should not be given casually. Third, a waiver is not voluntary if it is elicited from a source who was threatened with “dismissal from employment, harassment, prosecution, or other intimidation.” (Blanket waivers elicited by those with “influence over or control of” the source's employment or benefits, such as the cooperation that Bush demanded his senior staff provide, automatically failed that test.) Fourth, a waiver must be written and signed, addressed personally to the journalist who requested it, and specify what information could be shared. Fifth, the journalist must be able to interview the source “face-to-face or by telephone” to ascertain that the waiver was not coerced. Sixth, the source could not attempt to influence the journalist's testimony, either before or after the waiver is given. Finally, while journalists may show prosecutors notebooks, emails, and other communications with a source, they should insist on the right to redact “extraneous” information not relevant to the subpoena to prevent a “fishing expedition” into their sources.

Bill Safire said he hoped that journalists would debate what he insisted on calling the “Miller standard” for giving and waiving confidentiality pledges, whether or not Congress passed a media shield law. My jailing had enhanced the shield law's legislative prospects, he told Arthur.

That day, Arthur said he “fully supported” my decision to testify, just as he had backed my initial refusal to do so. “Judy has been unwavering in her commitment to protect the confidentiality of her source,” he said. He was “very pleased” that I had finally received a “direct and uncoerced waiver.” Keller agreed. My “steadfastness in defense of principle,” he said, had won “admiration from around the world, wherever people value a free, aggressive press.”

At this point, Bob Bennett wrote later, the
Times
, Arthur, and I were clear “winners,” getting “well-deserved credit for acting in a principled and responsible fashion.”
²

My three-hour grand jury testimony in late September 2005 recalling more than two-year-old discussions with Scooter Libby about Joe Wilson and Iraqi WMD went well, or so I thought. I had no inkling that some of the story I was writing about my conversations with Libby—or telling the grand jury—might turn out to be wrong.