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.

Comments

[RonK, Seattle]

The classic dilema -- is it two L's or two M's?

[RonK, Seattle]

And a fine post, BTW, invoking the metaphor correctly, and using it to explain clearly why obstruction of justice is a crime.

[Matt L]

Mark,

Great job dissecting this case. Judy Miller deserves to be indicted. It is painfully obvious that she is continuing to protect Libby rather than doing what she is supposed to do: exposing lies and reporting the truth. If nothing else, she needs to be fired.

[Matt]

It's not a Prisoner's Dillema, actually. In a prionser's dillema, the best strategy is ALWAYS to defect, no matter what the other layer does.

The game you're thinking of is a 'Stag Hunt'.

[John]

You're thinking like a lawyer, not a reporter. She made a promise, and was honor-bound, whether the law backed her or not. Whether Libby was using the promise to commit perjury was irrelevant. Her only question was whether he was voluntarily releasing her. She may have surmised incorrectly at first, but this is all much ado about nothing. She did the right thing, and so did the times.

[tom hilliard]

John is right, at least about the criterion to be applied to Miller's decision. Matt Cooper did not decide to testify based on Rove's lawyer telling a lie. Rather, Luskin publicly waived Rove's privilege of anonymity. That has no bearing on any question of veracity. Miller, on the other hand, decided that her source was sending her a coded message that he did not want his name revealed. That turned out to be unwise, but it's ethically defensible.

[Neil the Ethical Werewolf]

As Matt says, this isn't exactly the classic prisoners' dilemma. In that scenario, defecting is always the most self-interestedly rational option. Here's how the incentives are laid out in the classic dilemma. The numbers of years in prison are given purely for pedagogical purposes, not because they have any relation to what's actually going to happen to Judy and Scooter:

Both stay quiet: Both get 1 year in prison for obstructing.
Judy squeals, Scooter stays quiet: Judy freed, Scooter gets 5 years.
Scooter squeals, Judy stays quiet: Scooter freed, Judy gets 5 years.
Both squeal: Both get 2 years in prison.

Suppose you're Judy. If Scooter talks, you're looking at either 2 years (if you talk) or 5 years (if you stay quiet). If Scooter stays quiet, you're looking at either freedom ( if you talk) or 1 year (if you stay quiet). So self-interested rationality suggests that you talk, either way. Of course, if everyone does the self-interestedly rational thing, everyone stays in prison for 2 years, while everyone doing the irrational thing puts them in prison for only 1 year. That's the nifty thing about the prisoners' dilemma -- it shows that a bunch of self-interestedly rational people, even with perfect information, can all get a suboptimal outcome.

Mark's right that there's a coordination problem here, but it's not exactly the prisoners' dilemma.

[Chris]

Can no one at the top of the Times think straight? From the Van Atta et al story
"Mr. Sulzberger said he did not personally write the editorials, but regularly urged Ms. Collins to devote space to them. After Ms. Miller was jailed, an editorial acknowledged that "this is far from an ideal case," before saying, "If Ms. Miller testifies, it may be immeasurably harder in the future to persuade a frightened government employee to talk about malfeasance in high places."
But didn't Judy Miller's refusal to testify actually frighten the next Joseph Wilson from coming forward? Does Scooter Libby fit the bill of a frieghtened government employee" Did the authors of the Times-Comes-Clean story not understand that by backing Judy Miller's refusal to testify, Sulzberger was actively helping the administation to silence its critics?

[Buce]

Re Abrams as her lawyer. Isn't Abrams the Times' lawyer? And on what basis can he also represent her? Surely they have interests that are adverse, one to another.

DR 5-105(a) (of the Lawyer's Model Code of Professional Responsibility) says: “A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing different interests….”

An exception in DR 5-105© says” …a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of h is independent professional judgment on behalf of each.”

Aside from client loyalty rules, there are rules on client confidentiality that probably apply(in Canon 6, and point again to the conclusion that he has no business representing both.

[Jackmormon]

Buce, that it might not have been in Miller's best interest to have been represented by Abrams is one of the more interesting lines in Mark's post.

Abrams, in press interviews about his new book, saw the case as a marginal wedge for 1st Amendment issues; he seemed such an absolutist on press freedom, so total in his focus, that I rather doubt he got anywhere near the full story from Miller.

It's pretty clear that the Times paid Abrams's fees. The Times seems to have taken Miller's word for how things went down--well, some at the Times, at least; that "not the ideal case" language in the NYT editorials might indicate some scuffling behind the scenes.

I rather like Mark's speculation that it might have been a shift in lawyers that changed Miller's strategy. Maybe she was more open with Bennett about her entanglements; maybe he was more savvy about criminal law. Does anyone know who's paying his fees?