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Julian Sanchez | August 10, 2005

The case of jailed reporter Judith Miller has been largely treated as a First Amendment issue. Michael McMenamin wonders what happened to the Sixth.

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|8.10.05 @ 10:10AM|#

Actually, "hero to her fellow journalists" Judith Miller "Conscience in Journalism Award" has been rescinded by the group that gave it her, on the grounds that she's a scumbag and her fellow journalists want nothing to do with here shady water carrying for political insiders.

http://www.google.com/search?hl=en&q=judith+miller+award&btnG=Google+Search

|8.10.05 @ 10:12AM|#

"Yet Judith Miller was tried, convicted and sentenced to prison based exclusively upon written evidence from witnesses whose identities and testimony were kept secret from her and her lawyers."

Judith Miller was not tried and convicted. She's being held for contempt.

You sure you're a lawyer?

|8.10.05 @ 10:24AM|#

I didn't know there was a Constitutional right to publish a story regarding someone based on information you cannot or will not corroborate with a source. That used to be called hearsay, or worse, libel. Apparently, it's now how we disseminate news in this Golden Age.

|8.10.05 @ 10:26AM|#

Cdunlea- She didn't publish the story.

|8.10.05 @ 10:27AM|#

Oh, and libel requires malice aforethought. Hearsay is a legal term referring to a type of testimony not permitted in court.

|8.10.05 @ 10:39AM|#

Miller wasn't sent to prison on "secret evidence."

She was jailed for actions which she, her defenders, her accusers, the grand jury, the judge, and media all stipulate to - that she refused to answer the questions of a grand jury.

|8.10.05 @ 10:54AM|#

"Judy Miller has not been accused of a crime or convicted of a crime. She has been held in civil contempt of court."

|8.10.05 @ 11:00AM|#

And, while the Star Chamber did indeed engage in cruel and unusual punishment, wasn't there supposed to be something in the article suggesting that Miller - you remember Judith Miller, she's the topic of the piece - was being similarly treated?

|8.10.05 @ 11:01AM|#

Oh, and libel requires malice aforethought. Hearsay is a legal term referring to a type of testimony not permitted in court.

I'm not sure about that. My attorney once told me that making a written statement you cannot verify or attribute, if it in any way harms someone, can constitute libel, even if you cannot prove the malice; the fact that you knew aforehand that you could not prove your statement, and that it was detrimental, is enough. (Someone was making defamatory statements regarding my business without grounding. We won.) Refusal to divulge the source of that information after it causes harm can definitely be construed as libel; your malicious intent is then determined to underlie your reasons for your actions in the first place.

Regarding hearsay, yeah, you may be closer to that, but I was taking a more broad, layman's view: if I told people you wore ladies' underwear, but refused to say how I knew, it might not be hearsay in the legal sense but it sure would be suspect.

|8.10.05 @ 11:18AM|#

cdunlea - just the press gets the protection of "malice" - private citizens can get held liable, depending on the state, for mere negligence in determining the truth. You can debate the wisdom of this distinction (I certainly do) but it does exist.

joe - she refused to answer a grand jury question, but perhaps the grand jury didn't have sufficient cause to ask the question. She should have the ability to challenge the evidence that lead the jury to conclude that the violation of her promise to her source was outweighed by an important, legitimate governmental purpose. The government is using physical coercion on her. It has the burden of establishing that it is acting properly before you can place the burden on her to comply. Or at least that was true before the war on terror (or GSAVE, as some know refer to it) where shooting innocent people because they look suspicious is good policy.

|8.10.05 @ 11:23AM|#

just the press gets the protection of "malice"

quas, I'm not sure about that either. Otherwise, why would papers run corrections and apologies? Or have an ombuds person? If they can't be held liable, why waste the print space? The failure to apologize (in teeny weeny tiny print on page 16) could, I guess, be seen as malicious.

|8.10.05 @ 11:27AM|#

but perhaps the grand jury didn't have sufficient cause to ask the question

Unfortunately, in a grand jury hearing, the witness has no stnding to challenge the cause for the questions, not can they object to specific questions. This is why it's commonly understood that a prosecutor could get an indictment against a Twinkie; grand juries often represent something closer to a Stalinist show trial. Only at trial can the witnesses attorney challenge relevance.

|8.10.05 @ 11:37AM|#

quasi & cdunlea,

Actually, there's no distinction based on whether you're a member of the press or not. The distinction is in WHO you're writing ABOUT. If you're writing about a "public figure," then they have to prove malice; if you're writing about Joe Schmoe, then you can be held liable for publishing something false & damaging, even without malice.

As for corrections, yes, publishing a correction can be seen as evidence that the paper wasn't acting out of malice. Some people also publish corrections because they think setting the record straight is the right thing to do.

|8.10.05 @ 11:39AM|#

"joe - she refused to answer a grand jury question, but perhaps the grand jury didn't have sufficient cause to ask the question"

Yooz guys ain't got no right to ax be about the loans I gave to dat guy wid da broken thumbs.

We don't let witnesses decide which questions the grand jury gets to ask them.

cdunlea,

Grand juries cannot sentence people, nor can the information they gather be made public, absent a trial. That's why they have greater lattitude in the testimony they can require, and the information they need to divulge to witnesses. They just gather information, and issue indictments.

MP|8.10.05 @ 11:40AM|#

Unfortunately, in a grand jury hearing, the witness has no stnding to challenge the cause for the questions, not can they object to specific questions.

A person does not forsake their rights when they are testifying at a Grand Jury hearing. From this:

"The person subpoenaed to testify then is compelled to answer questions unless he or she can claim a specific privilege, such as the marital privilege, lawyer/client privilege, or the privilege against self-incrimination."

The sticky part is First Amendment free press issues. It remains difficult to determine exactly what the press is free to do, and what actions (such as revealing sources) compromise this freedom.

|8.10.05 @ 11:54AM|#

MP,
The prosecutor uses his discretion, and the the judge than judges the weight of the privelege.
In this case, all we know is the prosecutor thought it important, and the judge agreed.
As an aside, it is not entirely clear that Miller should be considered as part of the press in this story -- there are some reports, circulating around "her fellow journalists" that she may have been more involved in passing information around. Heck, given her history as a reporter it may be the case that she is actually a covert operative for the Operation of Special Plans.

|8.10.05 @ 11:57AM|#

I think it's pretty disgusting that journalists who would applaud anyone else doing what Judith Miller is doing are sliming her because they don't like her reporting on Iraq and WMD. Joe, is that a factor for you here? What if it was any other NYT reporter, and not Judith Miller?

|8.10.05 @ 11:57AM|#

Say it with me - a secret designer of secret designs?

|8.10.05 @ 12:03PM|#

Steve,

You mean like Matt Cooper? I didn't complain about Cooper being found in contempt, either.

|8.10.05 @ 12:05PM|#

Cdunlea- 1st Am. Geek is right about the public figure distinction. I forgot to mention that. Otherwise, the standard is more akin to negligence: if you act without due regard to the truth of your statements, and what you say is defamatory, it can get you in trouble.

Most papers run corrections not only for legal reasons, but because trustworhiness is their stock in trade.

And none of this is really germain, since Miller didn't publish the article. Frankly, I don't understand why Novak did.

|8.10.05 @ 12:10PM|#

Look at the bright side: At least she'll get a fat book deal out of it.

|8.10.05 @ 12:11PM|#

Judith Miller was not tried and convicted. She's being held for contempt.

Maybe the author is saying that a rose by any other name, blah, blah, etc.

|8.10.05 @ 12:14PM|#

"We don't let witnesses decide which questions the grand jury gets to ask them."

Never said that - the question is whether the witness gets to fight against the government coercion. And challenge the government's assertions in front of a neutral magistrate, after reviewing the government's evidence. ESPECIALLY when there is an important countervailing reason for the witness to not answer the question.

Of course, Stalinists presume that governmnet has the right to force people to do anything they want, but I keep up with this foolish belief that our Constitution isn't Stalinist in origin...

|8.10.05 @ 12:42PM|#

Our decidedly non-Stalinist Constitution authorizes grand juries to compel testimony.

I'm sure that allowing hostile witnesses to appeal every question to a district court judge, and of course appeal that judge's decision to appelate court, won't cause any problems at all.

|8.10.05 @ 12:50PM|#

Smart lawyers know that a sympathetic scenario will usually help their case.

But on the surface this case stinks: appointed government officials, using their access to secret knowledge, dole out retribution against Joe Wilson by diclosing his wife's secret job? How fucking lame are these people?

I'm not sympathetic.

|8.10.05 @ 12:57PM|#

quasibill: As I understand Miller's legal argument, she is saying that there is no credible evidence that a crime was committed, so there is no valid reason to overrule the "privilege" grounded in the 1st amendment. The judge disagreed, apparently based upon the prosecutor's evidentiary submissions. Miller and her defenders say this isn't fair because they had no opportunity to look at and challenge the prosecutor's evidence. The problem with allowing her to do that, of course, is that criminal investigations could be seriously compromised if all of the evidence were made public before an indictment was brought. The only way I could support your position would be if there was a way to allow the "press" in limited circumstances, to review and challenge the evidence, but that really opens a can of worms. I look forward to hearing your proposed rule in these situations that addresses the foregoing concerns.

|8.10.05 @ 1:06PM|#

quasibill: A further thought. Suppose Miller has evidence in her possession that a crime WAS committed, but has other information that might lead to the opposite conclusion if viewed in isolation. If she is allowed to review and challenge the prosecutor's evidence, what is to compel her to disclose ALL of the evidence, not just the evidence that supports her position?

|8.10.05 @ 1:18PM|#

Ron I understood you brief synopsis there far better than the article by Mr. McMenamin.

|8.10.05 @ 1:22PM|#

trainwreck: Thank you. Interestingly, McMenamin's argument fits nicely with Tom Delay's "you can't trust the judiciary to do the right thing" argument.

Xrlq|8.10.05 @ 1:46PM|#

Judith Miller was not tried and convicted. She's being held for contempt.

Maybe the author is saying that a rose by any other name, blah, blah, etc.

A lie by any other name is more like it. Miller's imprisonment is nothing like serving a prison sentence. Unlike any criminal defendant who has been "tried, convicted and sentenced to prison" for any crime, Judith Miller holds the keys to her own prison cell. If he wants to be home by dinner time tonight, all she has to do is agree to start complying with the law she should have been obeying along, and voilà, she's as free as Michael Jackson. As a lawyer, McMenamin surely knows this. He also knows, however, that he can count on the Julian Sanchezes of the world not to know any better.

|8.10.05 @ 1:53PM|#

"The problem with allowing her to do that, of course, is that criminal investigations could be seriously compromised if all of the evidence were made public before an indictment was brought."

"My" rule would be that before the government could exercise coercive powers over a person, it has to show that it has 1. the legal authority to do so, and 2. evidence sufficient to believe that it is necessary under that authority. This evidence must be made available to the defendant, otherwise you get Kafka. If the government doesn't want to reveal that information, fine. But it can't use it to then initiate coercive force on a citizen. The government must make a decision.

My question is - if Miller suddenly changes her mind, tells the prosecutor everything she knows, and the next day the prosecutor drops the prosecution saying there is no evidence of a crime, would you be comfortable with what has happened? I'm not. Before imprisoning a citizen, you better go through due process and prove that the person committed a real crime, and not just refused to kowtow to authority.

Otherwise, you end up with prosecutions like martha Stewart - politically motivated prosecutions based on the "cover-up" of a non-crime.

|8.10.05 @ 1:56PM|#

Based on what I've seen, your summary seems to be right on, Xrlq.

|8.10.05 @ 1:57PM|#

Xrlq: I think the main point of McMenamin's argument is that the public interest in having a free press and protecting confidential sources is being compromised by tyrannical prosecutors and gullible judges. It's not really about Miller herself, except as emotional "bait". From what I can tell, the public has responded to all of these arguments with a huge yawn, which appears to be the right response, at least at this point. Even if they don't understand the legal technicalities, I think the public realizes the distinction between protecting the press' ability to uncover improper or criminal activity and allowing the press to conceal criminal activity.

|8.10.05 @ 2:09PM|#

quasibill: Under your rule, any person would be able to resist compelled testimony by seeking the disclosure of all evidence in the hands of the prosecutor and then essentially trying the criminal case in advance. This would effectively eliminate the use of Grand Juries as investigative tools. What you are really arguing is that prosecutors investigating crimes should not be able to compel testimony in connection with the investigation.

|8.10.05 @ 2:12PM|#

I'm sure that allowing hostile witnesses to appeal every question to a district court judge, and of course appeal that judge's decision to appelate court, won't cause any problems at all.

Maybe we should get rid of these procedural avenues for all criminal convictions then. Sounds like they just get in the way, eh Joe?

|8.10.05 @ 2:14PM|#

"Judith Miller holds the keys to her own prison cell."

So patently false it's laughable. So she has voluntarily put herself in prison? She can just walk out?

No. The government holds the key to her cell, and is requiring her to break a promise she made in order to use it. All for someone: 1. noone is accusing of actually committing a crime, and 2. in an investigation that may not result in a prosecution.

Look, I can't stand Miller. I'm about as anti-war as anyone who posts here, and she is clearly a neo-con shill. But I also believe in limited government and due process. This is a case of big government using its coercive powers against an innocent citizen. It no more has the moral right to compel her talk absent due process than I have the right to compel you to talk.

|8.10.05 @ 2:24PM|#

quasibill: Believe it or not, I WANT to support your position. The problem is, I need to hear the argument that your rule will not virtually eliminate compelled testimony in criminal investigations.

|8.10.05 @ 2:50PM|#

"I need to hear the argument that your rule will not virtually eliminate compelled testimony in criminal investigations."

Well, it wouldn't, it would just mean that the government would have to pay a price to do it, instead of externalising the cost onto innocent citizens. The government has all kinds of power and money to put into criminal investigations. If it can't get enough evidence without compelling, through the use of coercive force, an innocent citizen to testify against their will, they're even more incompetent than I believe (and that's pretty incompetent). And I'm not even advocating that far. I'm just saying that government should have to prove that it has at least reasonable suspicion that this citizen's testimony would lead to the prosecution of a criminal. And that the citizen should be shown the evidence supporting the government's position so that she may challenge it through the adversarial system. If she then loses, well, I would disagree with the end result ordained by the Constitution, but it would be Constitutional to imprison her for contempt.

Xrlq|8.10.05 @ 2:59PM|#

This is a case of big government using its coercive powers against an innocent citizen. It no more has the moral right to compel her talk absent due process than I have the right to compel you to talk.

Maybe it works that way in your version of libertarian la-la land, but under our legal system parties have the right to compel witnesses to talk, or be held in contempt if they don't. Due process has nothing to do with it. If anything, failing to compel a witness to talk would violate the due process rights of the party seeking the testimony. Which happens to be the government in this case, but it isn't always.

|8.10.05 @ 3:00PM|#

"Maybe we should get rid of these procedural avenues for all criminal convictions then. Sounds like they just get in the way, eh Joe?"

Or maybe we should just KILL ALL THE JUDGES! Hey, if you're going to build a straw man, why not make it a big one?

Unlike you, David W., the Constitution actually considers the investigation and prosecution of crimes to be a legitimate good, to be balanced, not reflexively overruled, by the freedom to avoid testifying.

|8.10.05 @ 3:07PM|#

"If anything, failing to compel a witness to talk would violate the due process rights of the party seeking the testimony. Which happens to be the government in this case, but it isn't always."

Talk about lala land. The government has due process rights in investigating, not prosecuting, a citizen? Shew. Talk about "living Constitution". To say nothing of the fact that courts often refuse to compel witness testimony on relevancy or other grounds. Otherwise, I would always be subpoenaing the sitting president and all congress members. If they were sitting in court instead of at their jobs, thinking of new ways to tax citizens, this country would be in much better shape. And the compelled person has the right to such a challenge, seeing the evidence presented that their testimony is necessary.

|8.10.05 @ 3:18PM|#

If the information the government has is classified for national security purposes, how can they show it to Judy Miller without compromising national security? Isn't it illegal to share classified information with someone who isn't supposed to see it? Ooops.

|8.10.05 @ 3:48PM|#

"The government holds the key to her cell, and is requiring her to break a promise she made in order to use it."

A promise? That's hilarious. I can hear it now: "I can't tell you what you want to know because I made a promise to Mr. Malucci that I wouldn't testify about his loan-sharking operation. I'd love to help you, Mr. Prosecutor, but, uh, ya know, a promise is a promise. Sorry."

Xrlq|8.10.05 @ 4:34PM|#

Suppose I promised somebody a million billion dollars by next Monday. I have no legal way of coming up with that kind of money by then, so surely the government will understand if I have to rob or two. A promise is a promise.

|8.10.05 @ 5:17PM|#

quasibill: "Well, it wouldn't, it would just mean that the government would have to pay a price to do it, instead of externalising the cost onto innocent citizens."

If by "price", you mean not being able to learn the relevant facts in a criminal investigation without having to prove the case in advance, I think you are kidding yourself if you believe this wouldn't impair legitimate criminal investigations.

David W.|8.10.05 @ 6:05PM|#

Unlike you, David W., the Constitution actually considers the investigation and prosecution of crimes to be a legitimate good, to be balanced, not reflexively overruled, by the freedom to avoid testifying.

I agree that the Constitution allows Grand Jury testimony to be compelled. However, like any other compulsion that is enforced with punishments, I think the procedural protections of the Bill of Rights apply, just as they do under Mann Act compulsions, and Federal tax evasion compulsions, and so on.

You argued that extending Bill of Rights protections to grand jury testimony compulsions would be impractical. I was calling bullshit on that.

Extending the Bill of Rights to Grand Jury contempt "crimes" doesn't mean the fed gov't can't compel. It doesn't mean a witness can stonewall a grand jury with impunity. It just means that if you do these things, you should get the same procedural protections that any other punished party would have in any other context where one is about to be raped in real prison.

If practicality really were a concern, then we would repeal the 1st, 4th and 6th wholesale, rather then playing around with the margins in a grand jury procedings.

Further reading:
http://www.signonsandiego.com/news/metro/20050803-9999-1m3active.html

|8.10.05 @ 8:01PM|#

I know that Joe and XRlq have pointed this out, but Miller is in the pokey on civil contempt--she has not been charged with a crime. She does indeed "hold the keys to her own cell." All she has to do is agree to testify and she can walk out. If that doesn't sound like a big deal to you, remember that there is such a thing as criminal contempt. If you are found guilty of criminal contempt, you are sentenced to jail for a set period of time, and there is nothing you can do except serve the sentence. (And by the way, if you are charged with criminal contempt, then many of your consitutional rights as a defendant kick in--you have the right to defense counsel, etc.)

David W.|8.11.05 @ 6:34AM|#

"hold the keys to her own cell."

You could probably say this about most political prisoners. I think it is bad for a nation to have political prisoners.

|8.11.05 @ 9:31AM|#

Sometimes I feel sympathy for gaius - especially when I see how blithely people dismiss the moral value of standing by their word. How about this one, Xlrq - well, I promised that I would be a good soldier and follow orders when I joined the peace time army, but now that we're in an immoral war, I don't need to stand by my word. In fact, you shouldn't even be able to sue me for breach of contract. I mean, it was just a promise, after all.

|8.11.05 @ 9:35AM|#

Why, a regular Mandela, she is.

Dave W.|8.11.05 @ 9:53AM|#

Correction: I think it is good for a nation to have political prisoners, so long as they aren't as good and nice as Nelson and Winnie Mandela.

|8.11.05 @ 10:23AM|#

OK, I'll spell it out for you: most people don't define "political prisoner" as "prisoner whose politics I like."

Dave W.|8.11.05 @ 12:22PM|#

You lost me, Joe. I compared, perhaps even equated, political prisoners with Judith Miller and the jailed San Diego environmental activists I linked to.

So here I am placing Nelson Mandela, Judith Miller and the San Diego activists in the same category, notwithstanding huge disparities in personal politics, tone, niceness and (sometimes criminal) tactics.

Now, it is easy to see why one might criticize my category as overbroad. I mean, Judith Miller is not traditionally thought of as a political prisoner, and I imagine that opinions are quite mixed re the jailed San Diego activists. But, criticizing in the opposite direction, Joe says that I am playing favorites somehow with my big fat category. Very puzzling criticism indeed.

|8.11.05 @ 1:04PM|#

The problem is that by thinking of Judith Miller as a political prisoner, you've automatically conferred that status on anyone who refuses to testify about what they know of any crime (or potential crime that's under investigation). And when you strip off all the Old Grey Lady crap, that's essentially all she is -- someone who thinks she doesn't have to talk.

Tim Cavanaugh|8.11.05 @ 2:06PM|#

Here is Michael McMenamin's reply to joe's initial point:

The hearing (i.e., the trial ) she rec'd was on her Motion To Quash the subpoena; the contempt adjudication (i.e., conviction) was automatic when she refused to testify. And now she's in jail (i.e., imprisoned)

Miller's cert. petition to the Sup. Ct. under "Questions Presented" reads this way under point 3:

"Is it consistent w/ the 5th amendment for a journalist to be adjudicated in contempt and ordered imprisoned ...on the basis of evidence submitted ex parte...which the journalist and her counsel were denied the opportunity to see or rebut?" (emphasis in bold added).

I don't really understand Joe's point but it appears to be a distinction w/o a difference. She was given a hearing where evidence was presented; the court made a finding and entered an order based on the evidence and now she's in jail. Perhaps the one thing I didn't make clear was that it was civil contempt, not criminal but she's still in jail. Had it been criminal contempt where a sentence of 6 mos. or longer was possible (as it is w/ criminal contempt), she could have had a jury trial.

|8.11.05 @ 2:56PM|#

The difference between Civil Contempt and Criminal Contempt is not a distinction w/o a difference, Tim. As has been mentioned above, all Miller needs to do to walk free is to give the testimony she is legally required to provide.

Beldar|8.14.05 @ 8:42PM|#

I'm disturbed to learn that Xlrq has apparently been banned from further commenting on this post or, perhaps, this website.

As another practicing lawyer who deals with evidentiary privileges and court reviews of them on a day-to-day basis, I will gladly confirm the accuracy of Xrlq's descriptions of the applicable law (which others have also endorsed or stated independently). There is indeed a huge, huge difference between civil contempt and criminal contempt. There's a big difference between jail and prison. There's are many important legal and practical differences between a full-blown trial on a criminal charge and a civil contempt citation based on an evidentiary hearing. There's a difference between an in camera submission of grand jury or other secret or privileged materials, and a "Star Chamber"-type criminal trial on secret evidence. If Mr. McMenamin really thinks these are "distinctions without a difference," then I'd not much want him as my lawyer were I trying to quash a subpoena, because a competent trial lawyer, civil or criminal, must understand these distinctions to practice effectively.

Ms. Miller has been given, and has exercised, all of the rights that any grand jury witness has to challenge a grand jury subpoena. The very, very good lawyers who've represented Ms. Miller, Mr. Cooper, and the NYT understand the differences I mentioned above, and they almost certainly knew that conflating these differences (as Mr. McMenamin has repeatedly done) would have destroyed their credibility with the federal judges at every level who've reviewed this case. Their arguments therefore did not much resemble Mr. McMenamin's, but they were at least serious arguments that received a serious review by capable judges. Even so, not a single federal judge at any level has yet agreed with their arguments. And in fact, even were Congress to pass and make retroactive a shield law comparable to the most protective ones passed by any State, Judith Miller would still be in jail (not prison) for (civil, not criminal) contempt, because nothing short of an absolute privilege (which no court or legislature, state or federal, has ever given journalists) could have justified her refusal to comply with the federal district judge's lawful order.

Ms. Miller's case is a singularly unattractive one - whether on a legal, ethical, or moral basis - which perhaps explains why she's now a lone "martyr" to her cause.

But it's more than mildly ironic that when Xrlq has made non-profane and reasonable counter-arguments to Mr. McMenamin's article, his speech here has been silenced. He has other forums, of course, and I presume he'll make good use of them. And those who buy the bandwidth for this website have that legal right, of course. But it bespeaks a considerable hypocrisy for them to invoke it in these particular circumstances.

Beldar|8.14.05 @ 8:49PM|#

I wrote above that "not a single federal judge at any level has yet agreed with their arguments." I should have referenced the lawyers for Ms. Miller, Mr. Cooper, and Time Inc. (not the NYT, although it has paid for Ms. Miller's lawyers and supported her position). And I should have said, "agreed with their conclusion," rather than "agreed with their arguments," because one of the three judges on the D.C. Circuit panel agreed with them that there ought to be a qualified federal common-law privilege comparable to some of the state shield laws (but he also agreed with the Special Prosecutor that there has been a substantial enough showing to overcome any such qualified privilege).