Judith Miller is easy to hate, as a semi-official propagandist [2] for the Bush administration's global military crusades. But the imprisonment of the New York Times star reporter for contempt of court, ordered July 6 by US Judge Thomas Hogan in Washington DC, is dangerous blow to basic press freedoms.
Time magazine's Matthew Cooper appears to be off the hook, telling Hogan at the last minute that he would cooperate with the Justice Department's investigation into the leak of CIA operative Valerie Plame's identity because his source gave him authority to do so. Miller apparently received no such authority, and remained intransigent. She could stay in prison through October, when the grand jury investigating the case expires. (AP [3], July 6)
The case is the most serious legal clash between media and government since the 1971 Supreme Court decision allowing the Times and Washington Post to publish the Pentagon Papers, leaked documents on the secret bombing of Vietnam. This time, the Supreme Court has refused to hear the reporters' appeal—a sure indication of how seriously freedom has eroded in last 25 years. In a statement released last week, Time said "the Supreme Court has limited press freedom in ways that will have a chilling effect on our work and that may damage the free flow of information that is so necessary in a democratic society."
Unfortunately, too many who despise Miller for perfectly good reasons are letting thier passion cloud their political judgement on this question. Writes Rosa Brooks in an incredibly mean-spirited (and point-missing) opinion in the LA Times [4]:
In the midst of the media's love-fest for Judith Miller, 1st Amendment Martyr, it's easy to forget that Miller's questionable journalistic ethics left her in the doghouse only a year ago. Indeed, when it came to leaks, the only people busier than White House staffers last year were the denizens of the New York Times' newsroom, who fell all over themselves to excoriate Miller to competing publications.
According to a June 2004 story in New York magazine, for instance, one anonymous co-worker said: "When I see her coming, my instinct is to go the other way." By many accounts, Miller is rude, competitive and heartless, willing to pursue a hot story at any price. In at least one instance, she reportedly used the name of a source who had provided information only on condition that her name not appear.
It was Miller, more than any other reporter, who helped the White House sell its WMD-in-Iraq hokum to the American public. Relying on the repeatedly discredited Ahmad Chalabi and her carefully cultivated administration contacts, Miller wrote story after story on the supposedly imminent threat posed by Saddam Hussein.
Only problem: Her scoops relied on information provided by the very folks who were also cooking the books. But because Miller hid behind confidential sources most of the time, there was little her readers could use to evaluate their credibility. You know: "a high-level official with access to classified data." Ultimately, even the Times' "public editor" conceded the paper's coverage of Iraq had often consisted of "breathless stories built on unsubstantiated 'revelations' that, in many instances, were the anonymity-cloaked assertions of people with vested interests."
That's what makes the Judy Miller Media Hug-Fest so astonishing. Miller's refusal to testify to the grand jury investigating the leak of CIA agent Valerie Plame's name has catapulted her back into favor. Ironically, as it becomes ever more likely that she'll be jailed for contempt of court, the very affection for anonymous sources that landed Miller in hot water last year has become her route to journalistic rehabilitation. The Houston Chronicle rhapsodizes that "reporters such as Miller … are the front line in the struggle to maintain a free and independent press." Back at the New York Times, Miller's publisher, Arthur Sulzberger Jr., assures us that everyone is busy "supporting her in this difficult time."
I'm as big of fan of the 1st Amendment as anybody, but I don't buy the new Miller-as-heroine story. When Judge David Tatel concurred in the D.C. Circuit's refusal to find any absolute journalist privilege shielding Miller from testifying, he noted, sensibly, that "just as attorney-client communications 'made for the purpose of getting advice for the commission of a fraud or crime' serve no public interest and receive no privilege … neither should courts protect sources whose leaks harm national security while providing minimal benefit to public debate." Few legal privileges are absolute, and it's appropriate for the courts to decide in cases such as this whether the harm of requiring a journalist to divulge confidential information is outweighed by the public interest in prosecuting a crime.
Reasonable people can disagree on the appropriate scope of journalistic privilege. But we should keep the legal question — when should journalists be compelled by law to divulge their sources? — distinct from the ethical question: Is a journalist ever ethically permitted to break a promise and divulge a source? However we answer the first question, the answer to the second must be a resounding yes.
Should Miller have refused to offer anonymity to all those "high-level" sources who sold us a bill of goods on Iraq? Yes.
If it becomes apparent to a journalist that a source lied to him on a matter crucial to the public good, should he be ethically permitted to expose the lie and the liar, despite any prior promises of confidentiality? Yes.
If a source with a clear political motivation passes along classified information that has no value for public debate but would endanger the career, and possibly the life, of a covert agent, is a journalist ethically permitted to "out" the no-good sneak? You bet. And if the knowledge that they can't always hide behind anonymity has a "chilling effect" on political hacks who are eager to manipulate the media in furtherance of their vested interests, that's OK with me.
But Miller still won't testify. Even though, ethically, there should be no obligation to go to jail to cover for a sleazeball.
It's possible (though not likely) that Miller is covering for a genuine whistle-blower who fears retaliation for fingering, gee, Karl Rove, for instance, as the real source of the leak.
But I have another theory. Miller's no fool; she understood the lesson of the Martha Stewart case: When you find yourself covered with mud, there's nothing like a brief stint in a minimum-security prison to restore your old luster.
Now let's see. We're supposed to be absolutists on attorney-client privilege in the case of Lynne Stewart [5], but cave in on journalistic privilege because Miller is "rude and competitive," or because Karl Rove is a "sleazeball," or because the leak was an attempt to discredit someone exposing government misdeeds. Usually, journalistic privilege is invoked to protect those who expose government misdeeds—remember? If we capitulate in this case, we set a dangeous precedent, and make the proverbial noose for our own necks.
The lefty media watchdog group Fairness & Accuracy in Reporting (FAIR [6]) links to Brooks' piece and apparently endorses it, accusing Miller of "anonymity abuse." In contrast, Editor & Publisher [7], an industry watchdog publication with no axes to grind, is far more critical of Miller's imprisonment, and notes that the supposedly cushy facility where she is to be confined, Virginia's Alexandria Detention Center, is shared by none other than accused 9-11 "19th hijacker" Zacarias Moussaoui [8]. The international watchdog Reporters Without Borders [9] also protests Miller's imprisonment, calling it "A Dark Day for Freedom of the Press":
This unprecedented sentence against a journalist who was merely exercising her professional rights is a serious violation of international law, a dangerous precedent, and the United States has sent a very bad signal to the rest of the world. As a member of the Organization of American States, the United States has a duty to comply with the texts adopted by the Inter-American Commission for Human Rights, whose Declaration of Principles on Freedom of Expression clearly stipulates that every journalist has "the right to keep his/her source of information, notes, personal and professional archives confidential" (Article 8).
The Progressive [10], to its credit, is taking a more principled stance than FAIR. Editor Matthew Rothschild writes:
Like other repressive governments, the United States is now jailing journalists for just doing their jobs.
Judge Thomas Hogan's decision to haul Judith Miller off to prison for four months is a blow to journalism, and a blow to democracy.
Judith Miller was collecting information legally, and she was honoring her word to her source. Neither should be a criminal offense.
When a judge forces journalists to disclose their sources, that judge is interfering with the customary way journalists do their jobs, and these jobs, by the way, are the only ones expressly protected by the Constitution.
And that's for good reason: The founders understood that a free press is vital to the functioning of our democracy. Any time the government interferes with the press, it is limiting freedom...
Make no mistake: This decision will force potential whistleblowers to have second thoughts whenever they are contemplating leaking information to a journalist who is promising them confidentiality.
At this moment in our history, we need whistleblowers more than ever, since the Bush Administration is putting a "top secret" stamp on every document except the weather forecast.
Miller is being hung out to dry for a crime that really belongs to conservative columnist Robert Novak, who initially revealed that Plame was a CIA agent (in order to discredit her husband Ambassador Joe Wilson's debunking of Bush's bogus claims that Saddam Hussein was seeking uranium, paradoxically), yet mysteriously is not facing charges. Cooper and Miller were just investigating the leak after the fact, and Miller never even wrote about it. She is also likely taking the hit for White House media mastermind Karl Rove, who apparently spoke to Cooper about the leak and was very likely the source of it. Rep. John Conyers (D-MI) is circulating a letter [11] to other House Democrats calling for Rove to come clean on the affair or resign.
See our last post [12] on the affair.
