Reporter Miller, Prosecutor Have Tangled Before

New York Times reporter Judith Miller will be interviewed again today by prosecutors about the leak of CIA agent Valerie Plame's identity. Miller clashed with special prosecutor Patrick Fitzgerald and initially went to jail rather than testify. Much has been written about the special prosecutor and the Times reporter.

But one aspect of their relationship has been largely overlooked -- the two have tangled before.

Fitzgerald is a prosecutor who routinely gets high marks, even from lawyers for some of the people he's put in the hot seat. "Mr. Fitzgerald has handled himself very professionally," said George Freeman, assistant general counsel for the New York Times. "His word has been good throughout all these matters."

Plame's name first appeared in a Robert Novak column in July 2003. Miller never wrote about her. But she initially refused to identify her confidential source on Plame, saying the demand chills the ability of reporters to do their jobs.

The legal fight over the CIA leak case isn't the only time Miller and Fitzgerald have been at odds.

In fall 2001, Miller and Times Washington correspondent Philip Shenon were reporting on Islamic charities suspected of funnelling money to al Qaeda.

At that time, Fitzgerald was leading the prosecution as the newly named U.S. attorney in Chicago. He and the Justice Department argued that Miller's calls while working the story tipped off a foundation to an impending raid -- a charge the Times rejects.

In June 2002, Miller wrote about an Egyptian-American pilot who had been a crucial informant against al-Qaeda in the bombings of U.S. embassies in Africa. The pilot said the American government failed to live up to promises to compensate him and to protect him from severe reprisals in Egypt.

Miller's front-page story quoted current and former federal officials criticizing the government's handling of the informant. Fitzgerald was the lead prosecutor.

Michael Greenberger, a senior Justice Department official under President Clinton on counterterrorism issues, said the prosecutor's approach toward Miller is best explained by his hard-charging efforts to investigate crime -- not any bad blood.

"The circumstances of the Plame investigation, and Judy Miller's incarcercation, etc., really was a story unto itself that was almost certainly not impacted by prior events," Greenberger said.

Some critics have said that Miller is routinely too cozy with government sources. But several journalists suggest it was almost inevitable that Fitzgerald and Miller would butt heads.

"Isn't it interesting that a very prominent reporter, working for one of the most prominent newspapers in the world covering terrorism stories, runs against the grain on occasion, runs against the interest, on occasion, of a very prominent public prosecutor working in the very same field of terrorism?" said Marvin Kalb, a former correspondent for CBS News and NBC News.

Kalb said he has no reason to doubt Fitzgerald's professionalism. But he did say Miller and Fitzgerald have been cast in adversarial roles.

"In this case," Kalb said, "time and time again, these two professionals have had this apparent conflict of interest."

Through a spokesman, Fitzgerald declined a detailed request for comment.

The prosecutor's interest in Miller's reporting has stretched back several years.

In the summer of 2002, Fitzgerald requested Miller's phone records to find out who she had talked to at the Islamic charity. The Times refused to cooperate.

Two years later, Fitzgerald told the Times he intended to subpoena those documents. It was roughly the same time he sought to compel Miller's testimony in the Valerie Plame leak.

The timing made New York Times lawyer George Freeman queasy.

"You know, one wonders why both these things more or less started happening at the same time in the summer of 2004," Freeman said.

Floyd Abrams, another lawyer for Miller, said he considered trying to force Fitzgerald off the case on grounds of harassment. But that idea was rejected.

"We didn't think it was either persuasive or accurate to make personal charges against him," Abrams said. "But it is true that she has been in battles with him in the past—and continues to be."

Last winter, a federal judge dismissed the subpoenas in the Islamic foundations case. Fitzgerald is still appealing that decision.

In the Valerie Plame case, Fitzgerald is seeking to learn whether government officials leaked Plame's identity to punish her husband, Joseph C. Wilson, for criticizing the White House in a New York Times op-ed published in July 2003.

Miller served 85 days in a Virginia jail on civil contempt of court charges until Lewis Libby, the vice president's chief of staff, told her she could testify about their conversations.

Miller is expected to be questioned today about a notebook she just found. It shows she spoke with Libby in late June 2003 -- more than a week before Plame's husband went public with his criticism of President Bush.