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Miller was no sooner sprung and sworn than a war erupted over why it took Miller and her lawyers so long to get a waiver from Libby in the first place. One of the principles over which Miller said she went to jail was her belief that the so-called blanket waivers of confidentiality signed by Libby and several other White House officials were coerced from them, leaving her no choice other than to continue protecting them. But Libby's lawyer Joseph Tate suggested that Libby had offered Miller a freely given waiver as much as a year ago and that her lawyers dropped the ball--either they didn't understand the offer or they failed to communicate it to Miller. In a letter that Libby wrote to Miller after the negotiations resumed last month, Libby assumed an intimate tone: "Out West, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them. Come back to work--and life." Libby said that he was surprised he was being asked to "repeat for you the waiver of confidentiality that I specifically gave to your counsel over a year ago."
The assertion by Libby's team that he had been giving her the green light all along brought a quick rebuttal from one of Miller's attorneys, Floyd Abrams. In a letter to Libby's lawyers "to set the record straight," Abrams argued that until recently, the waiver offered by Libby's lawyers always amounted to a reference to the previously signed waiver that Miller considered "coerced." That position, Abrams said, led Miller's team to assume that Libby wasn't really keen on seeing Miller testify, no matter what Libby's lawyers implied--a hesitation that gave Miller pause. "He didn't call. He didn't write," said Abrams on MSNBC. After a while, "you draw certain conclusions."
Miller had spent nearly two months in jail on civil contempt-of-court charges when negotiations between the two camps resumed. Another Miller lawyer, Robert Bennett, picked up the phone on Aug. 31 to call Tate. Bennett told TIME that the Miller camp had received an indication from a third party that it might be a good time to approach Libby with a new request to personally waive the confidentiality agreement. It took Miller's lawyers a month, till Sept. 29, to hammer out the details with Libby and Fitzgerald. A legal source told TIME that Fitzgerald gave both camps a letter saying that if Miller and Libby were to have a talk about making a deal, the prosecutor wouldn't view the conversation as collusive or obstructive as long as they didn't discuss what Miller would testify to. Said Bennett: "She would not testify until she was satisfied that the source personally was waiving confidentiality, and she wanted to hear it directly from him." Negotiations with Fitzgerald were complicated, involving not only Miller's testimony but her notes as well. The legal source told TIME that the prosecutor did not give the final O.K. for Miller's release until after he received and reviewed the notes from one of two conversations with Libby in July 2003.