Prisoner's Dilemma

There was a time when the conspiracy theorist in me was periodically obsessed with the Plame case, largely as an opportunity for the intellectual exercise of extrapolating the maximal theory from the most minimal facts. But now my attitude is more of a healthy, "we'll know soon enough."But having been particularly obsessed with the Judy Miller aspect of the story, and as an early advocate of the view that Judith Miller was involved in something more than just protecting a source, it's hard not to comment on today's New York Times story on the case. And without repeating the phrase, "raises more questions than it answers," it's clear that the reporting today is only the beginning of a very big story for the Times, one that in the end will make everyone at the paper forget that whole little incident of being scammed by an over-hyped young writer who claimed to have gone to places he didn't really go.

Lots of good comments at talkingpoints, Kevin Drum, Jay Rosen's PressThink (particularly thorough) and of course The Next Hurrah, despite "emptywheel" being away.

Two minor points that were of particular interest to me: First, the Times story made clear without saying it that Miller was extremely poorly represented by Floyd Abrams. She was involved in a serious criminal matter, and a First Amendment lawyer was about as useful to her in that situation as Harriet Miers would have been. The final showdown among the lawyers, with Abrams and the Times's lawyer encouraging her to hold out in jail until the grand jury expired, and her "real" lawyer Bob Bennett insisting that Fitzgerald would empanel a second grand jury and start the prison clock all over again, was quite telling. Of course Bennett was right. After taking the case the Supreme Court, Fitzgerald was not going to just let Miller walk out of jail on October 28.

One of the key points of this story which is not pinned down here or elsewhere is, when did Bennett become her lawyer? The Times refers to a chance meeting last November, but then moves on to describe a conversation when Bennett agreed to represent her, which was obviously at a later date than the meeting. How much later is worth knowing, because it's been my theory that as soon as Miller had a real lawyer and not Floyd Abrams, it was made clear to her that she had to find an excuse to testify.

On a related point, the most chilling sentence in the article is Miller's own assertion that when she was told by Abrams that Libby's lawyer had told the grand jury that he did not identify Joseph Wilson's wife as a CIA agent, Miller "took that as a signal that he did not want her to testify."

Consider that Time reporter Matt Cooper used a similar piece of information to reach the exact opposite conclusion. When Karl Rove's lawyer Robert Luskin was quoted as saying, "whoever he [Cooper] is protecting, it's not Karl," Cooper took that lie as a justification for testifying. That seems reasonable. You can agree to protect your source, up to the point where your source publicly lies, at which point, if you are a guardian of the truth, your obligation ends.

In Miller's case, she took his lie, and not just a lie but the fact of his perjury, as a signal that she should continue to assert her right to protect Libby. Let's work through this: she obviously admit's that it's not an absolute right that she's defendign. It seems to depend to some degree on what Libby told the grand jury. If he had told the truth, then she would have considered herself free to testify and tell the truth herself. But if he perjures himself, then she will keep holding back rather than contradict his testimony. She's not shielding the identity of her source anymore, now she's simply shielding his right to lie and protect himself. Again, it's the opposite of Cooper's logic that it's okay to protect a source but not to protect a lie.

It does remind one of the classic Prisoner's Dilemma: If your co-conspirator cooperates with the jailer, you should too, but if he does not you should not. In a prisoner's dillema, the players don't have information about what the other did, but in this case, Miller did learn what Libby said and acted accordingly.

There's a word for this, or three: it's called obstruction of justice.  If it is true that Miller refused to cooperate for many months on specious grounds largely because she took Libby's perjury (and of course she alone knew it was perjury) as a "signal" not to cooperate, it seems to me Fitzgerald would be entirely justified in indicting her for obstruction of justice along with whatever other indictments he may choose to bring.