• 
• Some highlights from this interview
• The Times' story on the NSA's warrantless wiretapping
• The BALCO/steroids case
• How he decided whether to go forward with a leaked story
• With subpoenas flying around, is it a more dangerous time to be a journalist?

A former journalist whose most famous interview was with Osama bin Laden for ABC News in 1998, Miller crossed over from journalism to government to become the LAPD's bureau chief for counterterrorism and criminal intelligence in 2003. He is now the FBI's assistant director for public affairs. He is also the author of The Cell: Inside the 9/11 Plot, and Why the FBI and CIA Failed to Stop It [2002]. This is the edited transcript of an interview conducted on Sept. 15, 2006.

When you were a journalist, you said on the air, "My sources told me." [Your stories] involved national security information about suspected organized crime figures, active criminal cases -- grand juries were sitting -- and U.S. negotiations with other governments -- the U.S. and Israel in one case. You had no fear that somebody was going to come after you at some point and say, "We're going to figure out who's leaking this information"?

... Essentially, going into any story, my test was always, a, am I serving the public by revealing this information?; b, is it legitimate news?; and c, is it on the level where I'm going to have to consider that test that they are going to come after me as a reporter to reveal my source?

It's a quick discussion you have with yourself, because if you're in the business, you're used to having it. My judgment was pretty well down the middle in that every time I thought, "I'm going to go forward with a story," none of those times did I get called before a grand jury or receive a subpoena or a visit by the FBI, saying, "We want to know who told you that." What that suggests to me is that my judgment -- and I think the judgment of most reporters -- was pretty on the mark; that I didn't reveal the level of national security information or compromise a criminal case to the extent that that occurred.

Isn't part of the equation how you'll get a scoop? It will get picked up, enhance your reputation: "John Miller's got inside sources." Was money and fame also a motivator here in doing the stories?

No, I don't think that money and fame is a factor there, because think for a moment of all the people who have far more money and far more fame than I ever did as a journalist, who had none of those sources and broke none of those stories. That's not what the business is about anymore. I did the things I did as a good reporter.

OK, now you're on the other side of the street. ... You're inside the building, and you read the newspaper and see "a senior official of the FBI" or someone with knowledge of the case. Those are leakers, right?

You are saying that. Background briefings go on every day in Washington, ... in every capital of every [country] in the world, reasonably speaking. Yes, background briefings occur where people are referred to as "government officials" or officials of the agency they're with without being quoted by name. That is different from leaking critical national security information. One is kind of a 0.5 on the scale, and the other is an 8 or 9, so it's hard to lump them together in the same discussion.

There is a leak investigation going on related to NSA's [National Security Agency] warrantless eavesdropping program. So you're aware of this case?

Right. ...

How do you feel about the NSA eavesdropping story? If you were a journalist, would you have done the story?

That's asking me to talk about journalism and politics and hot-button issues. I don't know if I can answer that question without really going off into the corner and thinking about it for a long time. But I would certainly say my first reaction in reading the story was, "Boy, there's an excruciating amount of detail in here," not just about the program's existence, but about the actual mechanics of how it works and what makes it work, and why it functions well in one case and not in another case; the kind of information that your adversaries in terrorism or espionage overseas might look at and say, "Hmm, if I stop doing these three things, can I lower my risk of being identified?"

“[T]he question is, is it getting more dangerous for journalists, or are journalists revealing more sensitive information on a more regular basis? I don't know the answer to that question.”

That's the kind of story that as a reporter -- and I'm not criticizing any individual or saying that my judgment is better than theirs; I'm just saying that my judgment as a reporter would have been to look at that, talk to people and probably say, "Am I serving the public by revealing that level of information about the mechanics of how they listen to people talking overseas?"

So you didn't think it was a responsible story?

I'm reluctant to pass judgment on it in the form of the question you're asking me. Obviously as a government official, the government has taken the position that they want to know who revealed that information and launched an investigation.

As a journalist, I probably would have come to a different judgment. But I wasn't there; I wasn't in those meetings. But again, the standard I used to weigh things on is, is this going to be a good story? Clearly the NSA was going to be a good story. Is it going to hurt the government's ability to keep people safe? That is where the debate is in that story.

One of the reporters, [New York Times national security reporter] Jim Risen, said to us that the only thing revealed in his reporting was that the wiretapping was happening without a warrant. It wasn't news that we were trying to listen to terrorists around the world. That's been known for years, particularly with [Osama] bin Laden. The point of the story was that the president was breaking the law.

And I would refer you, without getting into that, back to the copy and the articles, and more specifically [to] the book that followed that described how the program works, where its capabilities exceed what people once believed in terms of where their conversations were. People have to come to their own judgment on that. That's not the issue here. We can get tangled up in that.

The issue is very simple from the standpoint of the Federal Bureau of Investigation, which is the FBI was referred a case from the Department of Justice to find out what government employee broke the law and violated his or her oath by revealing that level of information. That's not very complicated.

You became a journalist and then became a public official and were a straight-up law enforcement officer in Los Angeles for a while. How do you feel when you read those stories now? Do you see that as a big scoop and a great story, or do you see it as a violation of the national security of the United States?

As a government official, I see it from the agency's perspective, which is, what's required of us in this case? What do we have to do? As somebody who is privy to that information, I see it through the prism of, what oath did I take not to reveal this, and how seriously do I take that? And I feel strongly about that.

As a journalist, without going back to any specific case, I look at them all the same way. I put them through my old test, which is, is this news? That's question number one. Is it going to help the public or hurt the public by knowing it? That's question number two. And question number three is, is it going to compromise the victim in a kidnapping, an espionage case, a terrorist case, by revealing it? Those questions aren't in order. They become a balance for a reporter. I used to go through them all the time. And if you want to pin me down as to what are my personal feelings about that story, I'm not going to give them to you.

No, but I'm just thinking of you sitting there wearing both hats. [It] must be a little confusing sometimes.

Well, it's certainly food for thought. It's never confusing.

How do you think the FBI and the intelligence agencies, particularly in the counterterrorism area, are doing in terms of communicating what's going on?

I think we're in an uphill struggle. First of all, it's part of the post-Watergate reality of Washington that they can't go wrong on a slow news day with a bad story about a government agency -- even on a busy news day with a bad story about a government agency. We have a lot of good stories to tell, and sometimes it's hard to get traction.

Why?

I think there's a collective view in the press -- and I spent enough time there to remember that view -- that when the FBI goes out and does its job, and does it right every day, it's not news. Even on the days when it's really, really interesting, there's a cynical view to that extent. But if an agent trips and falls, if somebody has a problem, that that's magnified sometimes beyond where perspective would put it. (Laughs.) It's been that way for a long time.

A lot of law enforcement agencies don't like reporters reporting on what they're doing. They just don't want it out there, whether it actually hurts their case or doesn't hurt their case. … It's no secret to Al Qaeda that we're bugging their phones. We knew that before 9/11. But from the press point of view, the complaining by the government is simply the government doesn't like the idea that people know in general about the program.

I think the complaining has to do with the level of specificity. But again, I'll refer you to the government agencies that are able to talk about it. The FBI has never commented on the program, because it's classified and because it belongs to another agency.

Now, I'd love to talk to you about it on principle as a former journalist, but unfortunately, as an FBI employee, I'm kind of boxed in from doing that.

So when you sit back now and see these subpoenas -- whether they're for this young blogger/journalist, Josh Wolf, in San Francisco or the BALCO reporters [San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams] or apparently there may be some subpoenas [for] a leak investigation in the AIPAC [American Israel Public Affairs Committee] case -- is it getting a little more dangerous out there for journalists?

Well, that's a chicken-and-egg question. The question is, is it getting more dangerous for journalists, or are journalists revealing more sensitive information on a more regular basis? I don't know the answer to that question.

When you look at the season we're in, with the threat of terrorism and the post-9/11 world bringing an awful lot more national security issues before a larger body of reporters, I think you see a lot more traffic out there in sensitive areas than you probably would have in any other time of our generation of reporters. That means there's a lot more sensitive material floating around out there and a lot more issues of discussion --

But the subpoenas, at least so far, don't involve those issues. And one series of subpoenas had to do with a leak out of the White House and whether or not somebody was a CIA agent and the agent identification act had been violated --

I think people at the CIA look at that as a national security issue, revealing the identity of agents. The other cases you mentioned, one involves alleged espionage; another involves terrorism as the subject. All of that --

But the BALCO case is not national security.

When you get down to those cases, a referral comes in the BALCO case, it's [from] a judge who says, "I'm running this case; this information is part of my court; I demanded that it stay sealed, and somebody has handed it out, and I want to know who."

In that case, whether you're the Department of Justice or the FBI, you don't turn to the judge and say, "Well, find out yourself." You say, "We have a legal mandate, an obligation to investigate that." You go forward to the best of your ability to find out, because that's your obligation. This is in some ways a rub, a bit of friction between the judicial branch, the executive branch, the Fourth Estate. That is not necessarily new, but I think we're seeing more manifestations of it. That is because there is an awful lot more press now than there ever has been before in our lifetimes, churning out an awful lot more information. And where you see those frictions, it becomes a test of commitments.

What is the commitment of government people to uphold their obligations to keep those secrets if they've taken an oath to do so or are required by law? What is the commitment of those people who unearth that information and decide, with their eyes open, to publish it and to take the risk that comes with that in terms of, "Will there be questions asked about how I obtained it?," and, "Will I be willing to answer them?" And then [what is] the commitment of the investigators who have to sort that out?

Mark Corallo, who was at the Justice Department [as director of public affairs], has said to us -- because he was in the process of approving some of these things -- that the subpoena in BALCO would have never been approved under Attorney General [John] Ashcroft; that this is a step beyond. This is a change of policy. This is a new Justice Department that is looking for leakers, whether it's national security or, in this case, criminal cases.

I suggest you ask that question of the Justice Department. But the fact is that to obtain records about a reporter, to ask those questions, to take any of those steps requires, in this case, a judge to refer to a U.S. attorney to bring that to the assistant attorney general in charge of the criminal division in Washington, who had to bring it to the deputy attorney general of the United States and then ultimately to the highest law enforcement official in the land.

That shows that these decisions are not taken lightly. Nor is it a casual process that prosecutors and investigators can just haul reporters in and ask them these things.

Right, but you were a reporter for decades, and you reported stories, I would assume, of public interest and public value during that time. The president of the United States has said that the BALCO story was a great public service, and he said it personally to the reporters. Then the chief law enforcement officer says, "That's fine, but you've got to give up your source."

That's a question that you have to ask the Justice Department, because it's their decision process.

But you have prosecutorial discretion, given the guidelines of the Justice Department, about whether or not to subpoena the reporter involved.

And that's something that you have to talk to the prosecutor about.

Didn't the special prosecutor, Patrick Fitzgerald, in a sense break the ice here? It hadn't happened in many years that reporters were being subpoenaed openly as they were in Washington. Hasn't that, just from your own experience in Washington so far, meant that it's easier to do it, because he got the reporters to testify? One after another they went in, and one [New York Times reporter Judith Miller] went to jail. But she eventually testified, too.

Well, it certainly sharpened the thought process. Reporters probably go into these decision trees now not thinking, "I'll just say, 'sources said.'" Now they have to consider: "What is the risk to my source? What am I willing to do to protect that source? What is my level of commitment there? How important is it to get this information out?" They have a bit of a balancing act to go through.

On some level, you have to wonder, well, will that keep less information from coming out than should come out that's in the public's interest? On another level, you have to look at it saying, will it hurt investigations, compromise cases that are going on and that are going to injure an important process that serves the public in some ways, on some days more or better than just blasting the story out? That's the new balancing act.

Would what you've seen going on change the way you do business [if you were a journalist today]?

No. I think I would do business the same way I always do business, which is weigh the value of the story, weigh the potential damage to either the case or national security or the process and then come to an equitable judgment. That's the way I did it my entire career.

But now there's a greater likelihood you would get subpoenaed. Let's assume you and your boss get tossed out of the FBI, and you've got to go back and make an honest living on the street as a reporter. Would you like a federal shield law?

As a reporter, I'm sure it would be something that I would take comfort in knowing about, but I'd still put myself through the same test before every story, which is how important is this to know, and what am I going to break in the process of telling it?

You were reporting on national security and terrorism before, and now you've been involved in the enforcement side, and now at the FBI. How is the news media doing in terms of reporting on the war on terror?

I think it's become a little unwieldy. I mean, you've got no news cycle. It just goes all the time -- 24-hour cable stations, all news all the time -- so stories have a tendency to run away. But that's on a case-by-case basis you see that happen. By and large, I think they're doing all right.

By and large, what you've seen is a much higher level of public awareness about what terrorism is, what the level of the threat is. I think they perform best in crisis, and I think we've seen that from Sept. 11. But I also think we've seen that as the various threats have come and gone.

You hear that a public official says, "I think this journalist or this story warrants prosecution under the Espionage Act." That's been said by members of Congress, and it's been implied by the attorney general [Alberto Gonzales] in various interviews. Pretty extreme stuff. In my lifetime I've never heard a public official call for, or even raise the possibility [of], a journalist [being] prosecuted under the Espionage Act.

There's no secret in the world that these are brittle political times in Washington, and people say a lot of things on both sides of that issue. As an FBI official, we stay out of politics and out of discussing political issues.

Judith Miller went to jail and was subpoenaed around a story that she never wrote. The Cleveland Plain Dealer is now being threatened with subpoenas [for] a story it never published for fear that it would get in the same mess that Judy Miller got into. Are reporters supposed to stop listening?

I don't think they're supposed to stop listening. I don't think they're supposed to stop doing their jobs. There will be a rub between doing their jobs and the government trying to figure out which of its employees violated their oath and broke their law.

The leak investigation is not about the reporter in most cases. It's about who either told the reporter or gave the reporter classified information, national security information; some cases, grand jury information. But there is a chain down at which the reporter is usually at the end, the last stop, where those questions are going to come up.

Are you surprised by how much leaking goes on at the FBI?

I'm not surprised by how much leaking goes on anywhere in Washington. This is part of the Washington culture, which is people work the phones all day. I used to do this myself. You find people who, for various different reasons, will either tell you more than the next person did or, in some cases, more than they should.

I just imagine you in a meeting where one of your colleagues at the FBI turns to you and says, "John, how do we stop this?"

That's a question as old as ink. Since the first newspaper, since the first guy carved some letter into stone, people have been leaking. Before there was somebody carving it into stone, it was just called gossip. But it's not a new phenomenon, nor is it one that I think we're going to make go away with any law or any judicial solution. It's just the nature of the beast. The question comes down to those critical things that are going to affect public safety or the public good that are classified, and classified for a good reason. Can those things be held in? That's a bit of a struggle.

But it's not just classified information. In this administration anyway, it's grand jury information about the use of steroids. It's whether or not you're going to give up a videotape to a Joint Terrorism Task Force.

You could say that. But on the other hand, when a sitting judge says, "I demand an investigation into how information before my court that is sealed -- I take the idea that this trial is going to be carried out fairly, the way I run my courtroom, and I want to know who handed over this large amount of information," somebody has to investigate that. The judge says so; the law says so; the process says so. It's not one of those options where you say: "Hmm, this might ruffle some feathers of a reporter or some people downtown. Let's not do it."

Don't you think it has a chilling effect?

Well, it may. The question is, what does it have a chilling effect from? If you look at the [BALCO] case in California, was all that information going to come out at trial? Was it not? Is it going to prejudice the case? Those are the concerns of the judge. From the media standpoint -- and I say this from having worked in that business -- people say: "That's the court's concern, but that's not my job. My job is to find out as much information as I can, and if it's newsworthy, publish it."

There was no trial scheduled. There were plea bargains that had already been entered into in that case, and there were no further prosecutions contemplated at that time. And in fact, it's only in the wake of all the revelations that there's now a perjury investigation of some of the one-time unnamed witnesses who were before the grand jury.

Well, one of the things about going before a grand jury and giving testimony is that you're guaranteed secrecy. The grand jury was set up under old English law so that people could --

Come on -- you've got grand jury information. The secrecy is a relative matter in how it works and the intricacies of the grand jury. It's not so clear all the time. For instance, people are allowed to talk about what they said in front of the grand jury.

What you're asking me -- and we've been around this post I don't know how many times in this same interview -- is, "What do I think as a reporter about that?" What I think as a reporter about that, as someone who was a reporter, is when you go into those stories you have to say, am I going to take information that somebody had to break the law to give me, and am I committed enough to print it, no matter what happens?