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It's Judy's Turn To Cry
Is Reason commenter joe, our current standard-bearer for Anti-Judith Millerism, speaking for the majority of Americans, or does the whole doing-time-for-your-principles thing no longer generate any public sympathy? The top Google results page for the phrase "Judith Miller" indicates there just ain't a lot of sympathy out there for the jailed New York Times reporter. Out of the top ten results, just one is about her jail sentence—and that is a straight CNN story, not a Free Judith site. (You can find less than a handful of those here.) Of the rest, one is a Wikipedia entry, another is "Judith's World of Romance. Where anything can happen,. Time has no meaning. And love lasts forever" (I hope that's some kind of prison occupational therapy project, and not some other person named Judith Miller), and all the rest are people kicking her in the teeth for her WMD stories. Even if she stays in the clink until October, I'm not sure many people will consider her debt to society paid. Particularly disheartening is this E&P news story, about how even her Times colleagues are turning on her.
As somebody who could happily use the phrase "jailed New York Times reporter" every day for the rest of my life and believes many people should be doing time for the WMD fraud, I'm pretty surprised at the venom. How hated must Judith Miller be? Is a reputational reprieve due for Edward Said, the original Milla h8er?
I can understand anti-Bush folks' antipathy for Miller, but why hasn't there been any strong pro-Judith reaction from Bush supporters? Is the cognitive dissonance of having the administration's media martyr employed by the Times just too much to handle?
If there is a clear winner in all this, it's Times publisher Arthur Sulzberger Jr., who gets to rehabilitate a fallen star, look like a newsman of rare principle, hold out a standing rebuke to rightwing Times haters, and avoid having to publish anything by Judith Miller for a few months. If there's a clear loser, it's Miller, who's now several weeks into a prison sentence with bupkes to show for it.
Michael McMenamin reviewed the disturbing Sixth Amendment issues around Miller's case yesterday. When Miller headed into the hoosegow, Matt Welch made a point all sides can agree on: Time magazine sucks out loud.
Adam|8.11.05 @ 2:20PM|#
Yeah! What WMD fraud?
If there's a clear loser, it's Miller, who's now several weeks
into a prison sentence with bupkes to show for it.
She's probably built some credibility with future anonymous sources
that Cooper and Time won't have.
cicero|8.11.05 @ 2:25PM|#
I think people don't care because people go to jail all the time for failing to testify. Why should reporters get special rights? Also, a certain segment of the populaton realizes that the only freedom journalists support is "freedom of the press", which they define as the freedom to do whatever they want - cite anonymous sources that may or may not exist (really, how do we know for sure???), pretending to be somebody they're not (i.e. lying) to get a good story, stalking famous people and intruding upon their most personal moments, etc. If reporters stood up for other rights instead of being lackeys of the state, I might fill differently. But, as long as they claim the right to do whatever they want while claiming non-reporters don't have those rights, I'm happy some of them end up in jail.
|8.11.05 @ 2:35PM|#
There was a WMD fraud? Really?
Why didn't I hear about this? You'd think that something like that
would make the newspapers.
Does anybody have any idea what Cavanaugh's talking about?
Adam, I think right wing political insiders who want to leak to
somebody already knew she was the go-to gal before this
episode.
|8.11.05 @ 2:38PM|#
"...or does the whole doing-time-for-your-principles thing no
longer generate any public sympathy?"
I don't think covering up your role, and that of the friends who
made you a star, in the biggest scandal in the country really
counts as a principle.
|8.11.05 @ 2:41PM|#
What are the options that Judith Miller supporters are arguing
for? I am having a little trouble following but from what I can
gather it amounts to:
1. Reporters (or anyone) should never be compelled to testify,
because the government should not have that power. Most people
dismiss this, but let it kind of linger in the background.
2. Any one compelled to testify in a grand jury should be allowed
to see all of the evidence that goes to showing that her need to
testify is compelling, allowing her to mount a legal
challenge.
3. ~Something I am missing~
With regard to (2), this seems like a somewhat reasonable argument
to have, but it is a little late for this case. The rules are in
place, and should be followed, and perhaps if after the
investigation it appears that the judge or prosecutor abused their
authority, then there should be sanctions.
But it seems silly to argue that we should throw out the
established rules because we do not agree with the particluars of
this case, unless you are arguing for (1).
|8.11.05 @ 2:43PM|#
Why should we care? She promised anonymity to
someone. Big whup. There is no federal shield law, and on balance,
I think most shield laws are a bad idea; they go far beyond
protecting whistle-blowers. They should also require in-camera
review before a reporter is protected.
Maybe, at last, this will cut down on anonymous sourcing in DC. I'm
not hopeful, but it'd be nice.
Jeff|8.11.05 @ 2:44PM|#
Also, the left won't back someone for sticking to thier principles, because that implies that standards exist, and we can't have that.
|8.11.05 @ 2:46PM|#
I can understand anti-Bush folks' antipathy for Miller, but
why hasn't there been any strong pro-Judith reaction from Bush
supporters? Is the cognitive dissonance of having the
administration's media martyr employed by the Times just too much
to handle?
If there is a clear winner in all this, it's Times publisher
Arthur Sulzberger Jr., who gets to rehabilitate a fallen star, look
like a newsman of rare principle, hold out a standing rebuke to
rightwing Times haters, and avoid having to publish anything by
Judith Miller for a few months.
Wait a minute - administration media martyr? Aren't Plame et al
using her jailing as a symbol of the injustice of it all? And how
is having a reporter go to jail for expecting enhanced
rights-to-remain-silent for being a "professional journalist" from
a "legitimate news source" a "standing rebuke to rightwing Times
haters", when that kind of elitism is precisely what they think
defines the professional journalism field? And shouldn't
Reason be crowing that journalists have no business
expecting better constitutional protections based on their chosen
occupations?
I'm confused. Who am I supposed to root for?
|8.11.05 @ 2:51PM|#
I think this elaborate tempest in a teaspoon has presented so
many unusual alignments and given so many people so many dilemmas
that if you go purely by partisan preference it's almost impossible
to figure out whom to root for.
We're left with 2 choices:
1) Figure this out on the merits.
2) Conclude that the merits are so small either way that it's not
worth forming an opinion on.
|8.11.05 @ 2:51PM|#
Coach,
It's Option 3: Judith Miller should never have been questioned, and
the blowing of Valeria Plame's status never investigated in the
first place, because discreditting Joe Wilson was such an
important, patriotic public service. After all, he made it sound as
if Saddam Hussein wasn't mere moments away from raining down nukes
on cities throughout American, and in doing so, could have
undermined the case for the Iraq War.
|8.11.05 @ 2:53PM|#
Master Yoda, please, what is this "WMD Fraud" of which I
hear?
We're all so confused. So very, very confused.
|8.11.05 @ 2:56PM|#
I don't know if I'd call this the "biggest scandal in the country". I mean, Plame wasn't actually under cover (contrary to popular belief, simply working for the CIA, FBI or NSA does not make you automatically an agent, automatically on double-top-secret duty), her husband was shooting his mouth off to anyone who'd listen, and it turns out they were both wrong to begin with. In my mind, that ranks it on the scandalometer just a few notches below the whole Air America getting tons of cash from Bronx Boys & Girls' Clubs - that is, something with perhaps a kernel of truth to it, blown out of proportion by partisan folk.
|8.11.05 @ 2:57PM|#
Right--the problem here is that it's just such an unsympathetic set of facts on which to defend the (rather uncertain) right to not reveal a source. Maybe at some level there's some merit to the argument that Judith Miller must retain the ability to shield the anonymity of a government insider who is using that anonymity to do bad things, because otherwise journalists won't be able to shield the anonymity of virtuous whistle-blowers. But what a bummer of a poster child to be stuck with. As Dennis Miller once said about the unsavory prospect of having to rally around 2 Live Crew in order to defend 1st Amendment rights, "couldn't we have gone to the wall over Layla?"
|8.11.05 @ 2:59PM|#
Why should we care? She promised anonymity to someone. Big
whup. There is no federal shield law, and on balance, I think most
shield laws are a bad idea; they go far beyond protecting
whistle-blowers. They should also require in-camera review before a
reporter is protected.
I agree. Let her rot. She's not standing up for principles -- she
lacks them.
Karl Rove or Lewis Libby apparently thought so much of her
"principles" they believed she might enable them to commit a
federal crime by publicly blowing the cover of an undercover CIA
agent. What the f*** is principled about that?
|8.11.05 @ 3:03PM|#
'I don't know if I'd call this the "biggest scandal in the
country".'
Well, it's not a missing white woman, but the story has gotten onto
the back page of the news section once of twice.
"I mean, Plame wasn't actually under cover." The CIA says she was.
What do you do for a living again?
"her husband was shooting his mouth off to anyone who'd listen"
Well, we'll show that bastard.
"...and it turns out they were both wrong to begin with." Wrong
when "they" said Saddam wasn't buying uranium for his nuclear
program? He didn't have a nuclear program. Wrong when "they" said
she was undercover? See answer 2, above. Or just "wrong" in their
decision to say things that made the president look bad?
|8.11.05 @ 3:05PM|#
power forward, I actually do believe there should be a reporter
shield law. But no shield law in extistence would cover this
situations.
If your source tells you about a crime, shield laws would protect
you from having to name that source. However, if the communication
itself is the crime, no shield law will cover that.
It's similar to attorney/client privilege - it doesn't cover
communications which are, themselves, a means of furthering a
criminal enterprise.
|8.11.05 @ 3:07PM|#
M1EK,
Show me some anonymous government sources that will testify to that
fact and you've got yourself a deal.
|8.11.05 @ 3:08PM|#
The issue of whether journalists should be able to shield
sources as a first-amendment matter is one on which people may
reasonably disagree.
What I find digusting about the whole affair, however, is the way
that "liberals" like Atrios and Kos, who would be out pounding the
pavement for a journalist who cooperated in an anonymous leak if
the water being carried was left-wing, suddenly don't like the
notion of press shielding when Judith Miller is involved.
There are people out there who believe in shielding the press, but
only when they like the story being written, and like the source
being protected. Anyone who stood up for Ellsburg and the Times,
who now turns around and doesn't stand up for Miller, is a
hypocrite.
And the weaselly way they try to claim that this is a special case
- "Oh, the anonymity of sources is supposed to protect powerless
whistleblowers, not powerful administration officials!" or whatever
doesn't make it better, it makes it worse. It's just more evidence
that left to their own devices "liberals" will find a way to claim
any and all rights for themselves and their allies while
re-defining the right out from under everyone else. "Leaking should
only be protected when Karen Silkwood does it, not when Karl Rove
does it," is analogous in its inspiration to "Racism is only racism
when done by the powerful, not by the 'powerless'," and
etcetera.
|8.11.05 @ 3:13PM|#
Actually, the communication itself is not a crime.
It may have been illegal for the leaker to leak Plame's name, but
it was NOT illegal for Novak to hear Plame's name or print it. It
certainly wasn't illegal for Miller to hear Plame's name and NOT
print it.
The law under discussion specifically enjoins government officials
from disclosing the identity of CIA agents. It doesn't offer any
penalty for a journalist who listens to the statement of the
government official. Probably because it can't.
|8.11.05 @ 3:17PM|#
I think I drew a perfectly principled distinction at 3:05,
fluffy.
Ellsburg and Silkwood were reporting crimes, which whistleblower
laws protect. Rove and Libby (or, for the sake of form, the
wholly-unkown leakers) were reporting a fact (that Wilson's wife
recommended him for the job) that was in no way criminal, just
politically embarrassing (or so they hoped). Whistleblower laws
don't protect you from prosecution for releasing information on the
grounds that the information makes somebody look bad.
But IIRC, those whistleblower laws weren't in effect in the 70s.
The only thing Silkwood and Ellsburg had to protect them was the
righteousness of their cause, and the political cover that
righteousness provided to them. That's where the Rove/Ellsburg,
powerful/powerless dichotomy comes into play. I'd be perfectly
happy to see the White House leakers come forward, and count on the
truth to set them free, as Ellsburg and Silkwood did. Yeah, let's
see that, if their actions were so noble, patriotic, and
appropriate.
Jesse Walker|8.11.05 @ 3:17PM|#
I can understand anti-Bush folks' antipathy for Miller, but
why hasn't there been any strong pro-Judith reaction from Bush
supporters? Is the cognitive dissonance of having the
administration's media martyr employed by the Times just too much
to handle?
Bingo. How can those guys defend Judith Miller when they spend so
much time pretending reporters like her don't exist?
|8.11.05 @ 3:20PM|#
fluffy,
"It may have been illegal for the leaker to leak Plame's
name..."
Yes, and this is the crime, or at this point the alleged crime,
that is being investigated by Peter Fitzgerald and the grand jury.
Judy Miller is a potential witness to this crime. Like thousands of
witnesses every day, she was brought before the grand jury
investigating a possible crime, and questioned about it. She
refused, and is being held in contempt of court.
No one is suggesting that Miller committed a crime by witnessing
the leaker (we'll call him K. Rove) commit the crime.
|8.11.05 @ 3:21PM|#
If the communication itself is a crime, (and that's questionable), then shouldn't Miller be able to invoke the 5th Amendment?
|8.11.05 @ 3:22PM|#
Wrong when "they" said Saddam wasn't buying uranium for his
nuclear program? He didn't have a nuclear program.
But you cleverly neglect to mention whether or not Iraq was looking
for it. According to a report in
Financial Times last year, not only did the CIA think Iraq
was looking, according to "senior European intelligence officials"
- you can take that for what its worth, and yes the CIA was duped
by forged documents produced in 2002 (which even Wilson admitted he
learned after the fact), but it's not exactly a fabrication from
whole cloth (unless those senior European intelligence officials
are plotting with Karl Rove to dupe the whole world).
As for whether Plame is or was undercover, I remember reading that
she was not undercover, mainly because she was not acting in
professional capacity out in the field. I suppose the CIA may have
a classification level for that, but I doubt it's as stringent as
for, you know, real agents and stuff.
So what do you do for a living, besides post here?
|8.11.05 @ 3:22PM|#
Joe, I quite agree with you. And while Fluffy is right that both right and left can show a great deal of hypocrisy about what upsets them, I think Fluffy is wrong that this is one of those examples. There is a distinction here, and it's not a distinction based on who the person being protected is, it's a distiction based on the underlying conduct.
Peter K.|8.11.05 @ 3:29PM|#
Sad to say, fluffy nails it. The left is as opportunistic as the
right. You'd think they would stick to priniciples and be
consistent, i.e. go down in style, but noooo, O'Reilly, Limbaugh
and W, especially W, has warped their minds. Some apperently think
they're being hard-nosed, when they're being soft-headed.
Where I differ with fluffy is that I believe the New York Times is
right for once, and the standard explanation for why Miller did the
morally appriate thing is correct.
What I can figure out is why outing Valerie Plame is such a big
deal. Technically it was agaisnt the law, but so what?
Maybe one of these days Fitzgerald will fill us in.
Peter K.|8.11.05 @ 3:30PM|#
Sad to say, fluffy nails it. The left is as opportunistic as the
right. You'd think they would stick to priniciples and be
consistent, i.e. go down in style, but noooo, O'Reilly, Limbaugh
and W, especially W, has warped their minds. Some apperently think
they're being hard-nosed, when they're being soft-headed.
Where I differ with fluffy is that I believe the New York Times is
right for once, and the standard explanation for why Miller did the
morally appropriate thing is correct.
What I can figure out is why outing Valerie Plame is such a big
deal. Technically it was against the law, but so what? It's a bad
law.
Maybe one of these days Fitzgerald will fill us in.
|8.11.05 @ 3:32PM|#
rafuzo,
Iraq didn't have a nuclear program. That has been established
beyond any reasonable doubt by the Iraqi Survey Team and
International Atomic Energy Agency. I don't care what stories
people are peddling, I'm not trying to buy oates to feed to my 40
foot flying pony. Do you know how you can be certain of this?
Because I don't have a 40 foot flying pony!
And what you, or I, conjecture or want Plame's classification to be
is wholly irrelevant. The only people whose opinion on the question
matters - the CIA - sent one, two, three requests to the Justice
Department for a criminal investigation into whether blowing that
cover violated the law. The CIA seems to have been under the
impression that she had a "stringent" enough cover to warrant a
criminal investigation - sufficiently under the impression, in
fact, to push very hard against a resistant Attorney General to
make sure the investigation happened.
As for my profession, I'm a city planner, and make no
representations that I have no personal knowledge about Valerie
Plame's role in the CIA.
|8.11.05 @ 3:41PM|#
rafuzo,
As to whether or not Plame was undercover go read Larry Johnson on
TPMCafe. The CIA thinks she was, the prosecutor in the case
apparently thinks she was, the judge, etc. I have no doubt you read
it somewhere, but on what authority would they be able to know
without access to classified information?
|8.11.05 @ 3:41PM|#
Please have patience with my admitted ignorance of the
law.
One thing that has stuck in my mind from the article yesterday is
the assertion that the 4th Estate serves a constitutional function.
I've heard this phrase used in reference to journalism many times
before. As I say, I am under-informed about Supreme Court
precedents and so on, so I cannot address what the high court may
have written over the past 200 years. I can, however, read the
constitution itself.
I'm wondering where this idea that journalism serves a
constitutional "function" came from. IIRC, the press is never
mentioned in the constitution itself, and the first amendment only
states that congress shall make no law...freedom of the
press...yada yada.
From my reading, the only "functions" in the constitution are those
which are defined: congress makes laws, president leads army,
courts do this, congress does this but not that, etc. I just can't
understand what function journalism serves.
Yes, I know that a well-informed public is taken to be a good (even
necessary) thing for representative government. But it seems to me
that journalists have managed to convince us over time that they
are more important than they really are. As I see it, the only
checks on government power the framers saw fit to establish were
the ones they actually wrote in their document. I don't recall
reading in the constitution anything like this: "Article XYZ:
Journalists shall serve as a conduit of information regarding
activities of the congress and president and courts to the public
and their freedom to write whatever they wish shall not be
infringed; nor shall they be compelled to provide sources for their
information by any court."
Have I missed something or has the 4th estate simply assumed a more
noble mantle than that to which they are entitled?
Maybe one reason there appears little sympathy for Ms. Miller is
that the public at large is having these same thoughts?
scout29c|8.11.05 @ 3:42PM|#
Is it true that since entering jail, the quality of Judith
Miller's stories has remained the same?
Another rumor floating around is that Miller is the key to the
whole Plame leak affair. She was upset and took personal Wilson's
Op-Ed piece in the NYT and to get even used her contacts
at the CIA to get some information on him and they came back with
his wife's name -- her maiden or operative name. She then gave it
to friends at the White House. If this is true, no wonder she went
to jail rather than testify. She has much more to hide than just
some name in the CIA. She's not just a journalist reporting
objectively but a private operative.
If all this has a chilling effect on journalism, then we are the
better for it. There is way too much use of unnamed sources in
political news. And it's not the news value of the leak that
justifies using it because why the information was leak is many
times the more newsworthy aspect of the story. Journalism: chill
until cool and then serve.
|8.11.05 @ 3:48PM|#
As I and several others have noted previously, it's hard to work up sympathy for Miller's plight because she's in the position of someone who has committed many crimes that have gone unpunished, but who's actually been sent to jail for a crime they didn't commit. It's wrong, but you can't get distressed about it.
|8.11.05 @ 3:49PM|#
JMoore,
There is quite a bit of discussion about the vital role a free
press plays in a republic in writings of the founders. However,
since they expected this role to be "privatized," and not carried
out by the government, it's not surprising that they wouldn't lay
out how the press is to operate in the document that enumerates the
government's powers.
|8.11.05 @ 3:52PM|#
Jesse's provided the only answer that makes sense to the question of why no righties will defend Miller: they need to keep up the pretense that she's an independent journalist and can't be seen protecting her in public. Like a CIA handler whose operative gets arrested; if anything, being seen to defend him will just make things worse for him.
|8.11.05 @ 3:54PM|#
I am not a lawyer, but it was my understanding that anyone called before a Grand Jury may invoke The Fifth Amendment,...unless granted immunity, of course. No?
|8.11.05 @ 3:56PM|#
joe,
What about the 40-foot flying pony you had several years ago? The
one you ended a war by promising to get rid of, and providing proof
of it to the rest of us? The one you've repeatedly shown a strong
interest in re-acquiring? The one for which you have, in fact, laid
some of the groundwork for re-acquiring (i.e. building special food
processors)? The one being marketed by your close friend A.Q. Khan,
whom you've met with repeatedly? The one whose food several
independent sources, not relying on bogus documents, (and including
the former PM of Niger) say you sought in Niger?
That pony?
|8.11.05 @ 3:56PM|#
joe
I can understand that. Maybe I'm amking too much of the phrase, but
I think the question is more how the government functions in
relation to the press. The impression I get is that journalists are
trying to claim special status because of some vital function they
serve. And, again IIRC, the constitution specifically forbids
recognizing priveleged classes of people.
And now, I am going to hush up before I really show my ignorance
:)
|8.11.05 @ 4:01PM|#
Iraq didn't have a nuclear program. That has been
established beyond any reasonable doubt by the Iraqi Survey Team
and International Atomic Energy Agency.
So Iraq didn't obtain agas centrifuge
for uranium enrichment? Must be a position paper from a GOP think
tank. I guess those shipments of precision-machined aluminum tubes
could be used for other things too seized in Jordan, destined for
Iraq, in 2002, seemed to fit in with their desire to build one.
The
CIA thought so. And as late as 1996 the IAEA was concerned about
Iraqi enrichment programs. Funny how people were talking so
seriously, and UN officials filing reports so officially, about a
program that didn't exist. But I'm sure all those AP wire stories
and UN reports were just propaganda by bloggers and
extremists.
Incidentally, I know a guy who was on the bioweapons survey team
(interviewed in Scientific American
here) who thinks the Iraqis weren't being totally forthright in
that investigation. But that's the bioweapons area and I'm sure the
guys working on the nuclear program were more transparent than most
western democratic institutions, hence the whole "beyond a
reasonable doubt" point you make.
The CIA seems to have been under the impression that she had a
"stringent" enough cover to warrant a criminal investigation -
sufficiently under the impression, in fact, to push very hard
against a resistant Attorney General to make sure the investigation
happened.
A criminal investigation that would have only had legs thanks to
the Intelligence Identities Act of 1982, which said simply that
it's illegal to identify names or personnel details about certain
CIA employees. An act that was condemned at its passage as a sham
to protect Reagan's covert CIA operations from ever having to worry
about being outed for doing nasty things. Good thing we have it now
to protect people using their position in the organization to lob
partisan potshots across DC.
As for my profession, I'm a city planner, and make no
representations that I have no personal knowledge about Valerie
Plame's role in the CIA.
you sure do talk like it, though. But then, I've known a few city
planners in my life and personality-wise, you don't stray too far
from the mean. It also reminds me why I try not to get involved in
the comments sections in these places.
|8.11.05 @ 4:02PM|#
Shelby,
I can understand why people might have been suspicious that I had
another pony. I can see why, when I kept my barn tightly shut,
stories that I had a pony seemed credible, and forged or mistaken
receipts for straw might have supported that conclusion.
But people have been tromping around in my barn for three years
now. There is no pony. There is no pony shit. Veteranarians, barn
builders, biologists have all stated that there is no way there has
been a pony in my barn since the last one was taken away.
Why do you still insist that I was buying straw for a 40 foot
flying pony, when you now know, for certain, that there was no pony
to buy straw for?
David W.|8.11.05 @ 4:02PM|#
1. Reporters (or anyone) should never be compelled to
testify, because the government should not have that power. Most
people dismiss this, but let it kind of linger in the background.
2. Any one compelled to testify in a grand jury should be allowed
to see all of the evidence that goes to showing that her need to
testify is compelling, allowing her to mount a legal challenge. 3.
~Something I am missing
3. People should be compelled to testify for Grand Jury, but when
they refuse, this refusal crime should be treated like any other
crime under the Constitution and common law (independent trial by
jury, right to face accusers, necessity defense, 5th amendment
defense, etc, etc). If such a thing as civil contempt continues to
exist in connexion w/ Grand Juries, at least there shouldn't be
jail for it, nor a fine.
|8.11.05 @ 4:06PM|#
Of course the real reason that no one has any sympathy for
Miller is that, whatever her own reporting record, she worked for
the Great Satan (aka the New York Times).
As all people know in their heart of hearts, the Great Satan is the
enemy of civilization, and anyone who has ever been paid by the
Great Satan is a willing servant of evil.
"She's a witch! Burn her!"
|8.11.05 @ 4:06PM|#
JW,
You can only invoke the Fifth Amendment on the grounds that what
you say may incriminate *you*, not someone else.
|8.11.05 @ 4:08PM|#
And yet, rafuzo, we know know, for certain, that Iraq was not
working on a nuke program. The intelligence that suggested they
were was wrong, or hyped, or misinterpretted. We know this, now,
after the war, for certain. You can't continue to play dumb, and
say you have good reason to believe there's a pony in my barn,
because you've been in the barn. And no pony.
Once upon a time, we didn't know for certain whether Joe Wilson was
right, and Iraq had no nuke program, or whether Dick Cheney was
right, and Iraq did have a nuke program. Now we know. Joe Wilson
was right, and you and Dick Cheney were wrong. Joe Wilson didn't
screw up when he said there was no nuke program. His detractors
screwed up when they said there was such a program.
And you screwed up when you believed him.
|8.11.05 @ 4:09PM|#
Oh, Shelby, the ex-PM of Niger didn't say Iraq bought, or sought, uranium. He said Iraqi officials met with Nigerois officials to discuss trade relations, and he concluded they wanted to talk about uranium. Turn out he concluded wrongly as, once again, THERE WAS NO IRAQI NUKE PROGRAM TO BUY URANIUM FOR.
|8.11.05 @ 4:12PM|#
joe,
it is possible that Ellsburg was committing a crime when he acted
as a leaker. you may remember that he was under investigation for
those crimes when the investigators went a little over board and
broke into his doctor's office and took some shit. Judge dismissed
the case for prosecutorial misconduct.
point being, if you don't want to protect Miller, you may not be
protecting Ellsburg.
Further, on what basis are you drawing parallels with the
attorney-client privilege? I've heard this argument many times and
it just doesn't work for me. Certainly the First Amendment argument
for the reporter privilege would likely result in a privilege with
different contours than a common law privilege. If not the
constitution, then are you relying on the hodge-podge of various
state shield laws to say that no privilege would cover this
situation?
Further still, there are meaningful differences between the
reporter privilege, as it generally exists, and the attorney-client
privilege, namely that in the attorney client privilege the
privilege belongs to the speaker and in the reporter source
privilege it belongs to the reporter. The reason for this is that
we are trying to protect reporters in addition to protecting
sources.
Further one more time, the common law privilege of
clergyman-penitent is stronger than the attorney-client privilege
(although in modern days it is a lot weaker) and same is true for
the spousal privilege. So, if you want to draw parallels with other
privileges there has to be some reason for relying on the
attorney-client privilege for your basis.
MP|8.11.05 @ 4:18PM|#
I am not a lawyer, but it was my understanding that anyone
called before a Grand Jury may invoke The Fifth Amendment,...unless
granted immunity, of course. No?
If they are being asked a question related to criminal activity
that they are not accused of being involved with, and their answer
is not self-incriminatory, then they can't plead the fifth. If they
are concerned, then the judge can hear it in private and decide.
You can't simply "plead the fifth"...there has to be a reason.
|8.11.05 @ 4:20PM|#
McMenamin: "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."
Uh, one problem with that. She wasn't tried, convicted or
sentenced. She wasn't even accused of a crime. She was sent to jail
on a civil contempt of court citation. And the "evidence" leading
to the citation wasn't secret. It was her quite public refusal to
appear before the grand jury and reveal her source.
|8.11.05 @ 4:23PM|#
Ellsburg was committing a crime. I said that earlier, he risked
his neck, and the only thing he had to protect himself was to be
right enough that nobody would go after him for fear of political
fallout among the public.
But because of him, and Silkwood, laws were passed protecting
whistleblowers. Now, if you release classified information that
implicates government officials in criminal behavior (not in being
married to someone in the CIA, but in criminal behavior), you have
a legal shield.
As for "whence this privilege," I don't believe there is a First
Amendment guarantee to it - and neither does the judge. When I say
I support it, I mean I would support passing a law at the federal
level creating it. I suppose such a law could be written in a way
that would cover even communications that are, themselves, crimes.
My point was that, to the best of my knowledge, none of the state
laws protect this, and neither does the attorney/client
privilege.
Tim Cavanaugh|8.11.05 @ 4:27PM|#
Uh, one problem with that. She wasn't tried, convicted or
sentenced. She wasn't even accused of a crime. She was sent to jail
on a civil contempt of court citation. And the "evidence" leading
to the citation wasn't secret. It was her quite public refusal to
appear before the grand jury and reveal her source.
Here is Michael McMenamin's reply to this point from the earlier
discussion:
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 @ 4:30PM|#
Gareth:
"You can only invoke the Fifth Amendment on the grounds that it may
incriminate *you*, not someone else."
Yes, I know that much. But unless someone testifies, how is anyone
to know whether that testamony will incriminate the witness?
|8.11.05 @ 4:33PM|#
"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."
There's some bobbing and weaving going on here. She wasn't jailed
based on any evidence about leaks, Karl Rove, or anything else
related to the alleged crime of leaking Plame's name. The
"evidence" was her statement that she wasn't going to testify. The
"finding" was that she wasn't going to testify. None of that was
secret, and she had every opportunity to challenge that evidence
and that finding. She didn't choose to do so, because even she
admits that the finding is correct: she's refusing to testify
before the grand jury.
|8.11.05 @ 4:34PM|#
Judith Miller is in jail because she knows if she talks it will
come out that in her total certainty that Mr. Hussein had nukes or
germs, she went rogue.
It would end her career as a journalist. Maybe she'd get a sinecure
at some foreign policy place, but between losing all cred and her
job and becoming a martyr for the first amendment, Miller is
choosing the latter and not saying or writing anything.
Don't people go to prison to write books?
|8.11.05 @ 4:37PM|#
JW,
Unless I'm mistaken, anyone can plead the fifth. But if it later
comes out that you knew your testimony wouldn't tend to incriminate
you, you just committed perjury before a grand jury, and your ass
is toast.
I believe the other side's lawyer can also make a showing to the
judge that your testimony isn't going to incriminate yourself, and
if the judge agrees, your assertion of your right will be
rejected.
Someone correct me if I'm wrong.
MP|8.11.05 @ 4:38PM|#
Yes, I know that much. But unless someone testifies, how is
anyone to know whether that testamony will incriminate the
witness?
They would testify in chambers and the judge would make that
decision.
|8.11.05 @ 4:39PM|#
Disregard my last post. I see now that it was answered before I finished typing it.
|8.11.05 @ 4:50PM|#
David W,
I fail to see a difference between my 2 and your 3.
So, no jail or fine for refusing...what exactly are you advocating
should be used to compel testimony (or it is 1)?
Baffled. I am no laywer, but it seems to me that the proposals here
makes prosecutions very expensive and inefficient.
MP|8.11.05 @ 4:51PM|#
I don't understand why joe keeps harping on the lower level "refused to testify" issue. The higher level "refused to testify due to freedom of the press" is the only really relevant issue here. It appears however that the original judge made a decision that no, based on the evidence at hand, compelling her to testify does not compromise her press freedom. Furthermore, it appears that Due Process was followed, almost all the way to SCOTUS, and all levels concurred with the original judge. Thus, given that I see no arguments as to why the judge was wrong, and no good arguments as to why press freedom is being compromised in this case, I see no reason why she shouldn't be locked up for contempt.
|8.11.05 @ 4:58PM|#
This is slightly OT, but why was Iraq concerned about trade
relations with Niger?
Other that uranium, aren't Niger's other exports chick peas,
lentils, and cocoa?
David W.|8.11.05 @ 5:03PM|#
theCoach,
Good call; I misunderstood #2 when I wrote my previous post; #3 is,
at best, just a spin on #2; be more careful next time, etc.
|8.11.05 @ 5:36PM|#
I don't know, alkurta. Maybe he wanted to talk about Iraqi
exports.
I know of at least one commodity Iraq was interesting in exporting.
I also know that government officials in Africa have been known to
be comfortable with the sort of, let's just say, complicated trade
arrangements that took place under Oil for Food.
|8.11.05 @ 5:36PM|#
JMoore-the idea was that an independent press would be capable of providing information on the events surrounding the government, with the goal of making it possible for citizens to vote appropriately. It shouldn't break with the Constitution's prescriptions against a privileged class, because in theory every private citizen should have these rights. This attitude of the NY Times and other news organizations have demonstrated that this is not exactly true, which is why the whole issue is due for alteration.
|8.11.05 @ 5:41PM|#
Joe,
Niger's ex-PM did indeed say that Iraq's delegation was there to
inquire about obtaining uranium. It seems very probable he had a
good basis for that conclusion -- see alkurta, above. But no, they
did not directly ask him to sell them uranium.
Speaking of which, you seem to be putting the cart before the horse
(or rather, the pony before the uranium). Iraq was indeed pursuing
a program of nuclear-weapon development. It was operating at a low
level (merely obtaining centrifuges and the like) BECAUSE THEY HAD
NO URANIUM. Or yellowcake, which as you know is the equivalent
here. Once you can obtain the uranium, it makes a lot more sense to
invest a few billion dollars making it useful.
This raises two points: (1) Iraq's WMD program, as constituted in
1991, was not limited to nukes; Hussein not only had chemical
weapons, he used them on Iraqi Kurds. Nukes may be the Big Kahuna,
but the cease-fire in 1991 was not premised just on destroying
nuke-related materials, etc.; chemical weapons were at issue too.
So it's not really a "pony," it's more of a barnyard menagerie in
question. (2) This whole discussion stems from a claim that the
Iraq War, Phase II was initiated based on "fraud". In fact, the
point was to keep Hussein from having WMD, now or in the future.
Did we think he had some now? Yes, for good (though imperfect)
reasons. Did he in fact? Only in trivial amounts, unless some is
very well hidden -- which is possible. Would he have developed them
again, as he had in the past? I certainly believe so.
Xrlq|8.11.05 @ 5:54PM|#
I can understand anti-Bush folks' antipathy for Miller, but why hasn't there been any strong pro-Judith reaction from Bush supporters? Is the cognitive dissonance of having the administration's media martyr employed by the Times just too much to handle?
Hardly. A more likely explanation is that Bush supporters, as a
group, are not big fans of the phony "privilege" she's asserting.
Apparently, neither are the liberals, except when it's their own
people they're trying to keep out of prison.
Michael McMenamin reviewed the disturbing Sixth Amendment issues around Miller's case yesterday.
Contrary to McMenamin's lies, Miller was never tried or convicted
of anything, and will be turned loose the instant she stops
flouting the law and agrees to tell the grand jury what she knows.
Contary to Julian and Tim's ignorance, her non-case has nothing at
all to do with the Sixth Amendment.
|8.11.05 @ 6:57PM|#
I am not making a case for or against a journalistic privilege,
but I am dead set against using other types of privilege as an
analogy, as many people have done. There may be valid reasons for
"shield laws," but I just can't see journalists and their anonymous
informants as being even remotely analogous to well-established
privileged relationships. Here's how I break it down:
Spousal Privilege
1. Highly intimate relationship
2. Identity of informant known (the spouse)
3. Privileged communication/information is about the
informant
4. Informed party does not reveal the information itself
Attorney-Client Privilege
1. Intimate relationship
2. Identity of informant known (the client)
3. Privileged communication/information is about the
informant
4. Informed party does not reveal the information itself
Priest-Penitent Privilege
1. Intimate relationship
2. Identity of informant known (the penitent)
3. Privileged communication/information is about the
informant
4. Informed party does not reveal the information itself
Doctor-Patient Privilege
1. Intimate relationship
2. Identity of informant known (the patient)
3. Privileged communication/information is about the
informant
4. Informed party does not reveal the information itself
(exception: may reveal statistics, but not identities behind them,
for public health purposes)
Journalist-Anonymous Informant Privilege
1. Usually not intimate relationship
2. Identity of informant unknown (hence the term "anonymous")
3. Privileged information is about other person(s), although
informant may be working with/for those persons
4. Informed party usually reveals information by publishing
drf|8.11.05 @ 7:13PM|#
JMoore!!!!
ARGH!!!!!!!! I'm having grade school exam flashbacks from your
posting!!!
:)
cheers,
drf
|8.11.05 @ 7:20PM|#
Interesting, JMoore. A couple of points:
1) A/C Privilege has sometimes been argued to apply to the identity
of the client. Not sure if this has been raised successfully, but
it gets serious consideration when raised for the first time in a
given jurisdiction.
2) The "privileged information" for a supposed J/I Privilege is of
course the I's identity, which is by definition NOT revealed by
publishing. Though I'd have to review some state shield laws to see
if they treat it that way.
|8.11.05 @ 7:22PM|#
Sorry
I tried cutting and pasting the spreadsheet I made to keep up with
this issue, but apparently that's a no-no. Pity, it was color-coded
and rich with formulas. I find that spreadhsheets really help
clarify the world and quiet the voices in my head.
:)
|8.11.05 @ 7:26PM|#
Shelby
Yeah, I probably painted this with overly-broad strokes, but the
point of course is that claiming a journalistic privilege by
asserting it's analogous to the others just doesn't hold up.
It may be just as important for a free society (not offering an
opinion on that), but it just isn't the same.
|8.11.05 @ 7:30PM|#
JMoore,
Yes, but you haven't shown WHY the fact that a journalists' shield
law is different in those ways makes it a bad idea. Almost every
state has some form of shield law. If they were a bad idea, there
would be negative consequences. I'm not aware of any.
|8.11.05 @ 7:40PM|#
Steve
I'm not putting forward a case against shield laws (frankly, I'm
still on the fence). I just don't like the way that some have tried
equating the privileges.
Oh, and by the way, to renew my Pythonesque call from earlier in
the thread...regarding Ms. Miller:
"She's a witch! Burn her!"
:)
drf|8.11.05 @ 8:20PM|#
:)
How 'bout just building a bridge out of her...
(applies to witches and stonewall(ing)
drf|8.11.05 @ 8:22PM|#
:)
Or we could build a bridge out of her (which works for witches and
stonewall(ing))
Matt|8.12.05 @ 5:52AM|#
Journalistic shield laws put legislatures and courts in the
business of defining what is and is not legitimately considered
"journalism". Which turns Freedom of the Press from a right
(enjoyed universally by all citizens) to a privelege (restricted to
those with government permission, revocable for "cause").
Sure, it can be noble to go to jail for a cause. But her cause is
itself ignoble.
|8.12.05 @ 9:58AM|#
JMoore, I only brought up other forms of privilege to
demonstrate that statements like those that alleged Karl Rove
allegedly made to Judith Miller - statements in the furtherance of
a crime - wouldn't be covered under any of those, either. But good
point, the journalistic privilege rests on even shakier ground -
that of public interest, not individual rights.
Steve, one of the reasons that state journalist shield laws haven't
resulted in a landslide of insiders committing criminal leaks is
because, as I mentioned, those laws don't cover criminal leaks.
|8.12.05 @ 10:04AM|#
Shelby,
No one's disputing the state of Iraq's WMD program as of
1991.
I don't have a link handy, but it seems that Iraq did, in fact,
have tons of processed uranium (yellocake) on hand prior to the
latest invasion. Their reasons for not continuing with a nuke
program, therefore, were not based on a lack of uranium, but on a
lack of processing equipment, and the determination that their
facilities would be destroyed (a la Operation Desert Fox, of the
even more successful UN inspection regime) if they were ever
constructed.
BTW, the fraud was not the suggestion that the elimination of
Saddam's WMD programs was not absolutely certain. The fraud was the
claim that Saddam's WMD programs posed a threat to us now, or in
the future, if we did not invade Iraq. 45 minutes, intercontinental
drones of death, aluminum tubes usable for uranium enrichment, etc
etc etc.
|8.12.05 @ 12:55PM|#
joe,
Re the fraud claim, I do believe Iraq posed a threat to us "in the
future," and never thought it did "now". Iraq had a history of
developing WMDs and trying to develop nukes, Iraq supported
terrorists, and terrorists had demonstrated new, horrific
capabilities even without nukes/WMDs. Why wait until a plainly
hostile Iraq succeeded in rebuilding its weapons programs and sold
the results to terrorists? It might never happen, but that no
longer seemed a wise bet.
Tim Cavanaugh|8.12.05 @ 1:33PM|#
Good list, Jmoore, but we could also consider how much value to
a free society there is in protecting these respective privileges:
For doctors, I'd say there's some value, for spouses and attorneys
probably a lot, for priests and penitents none whatsoever. On that
scale, reporter-source comes in as more important than some, less
important than others. There is value in having a press that is
powerful against, adversarial toward, and not vulnerable to
government officials*. It's certainly more valuable than, for
example, the right of a Catholic priest not to testify against
another Catholic priest who confesses to child abuse.
There's also a lot of kneejerk anti-media populism going on when
people gripe that reporters are supposed to have a privilege nobody
else does. Many shield laws are pretty broad in their definitions
of who is a journalist. That's why the most infamous pre-Miller
case was that of Vanessa Leggett, who had a lot of trouble because
she had never been published before and wasn't affiliated with any
news organization, and thus couldn't prove she was doing
journalism. I may be misremembering, but I believe American news
organizations were pretty much unanimous in supporting Leggett
because they recognized the danger of letting the government
limit the definition of who's a legitimate journalist. I
think alla yous who are getting mad at the "elite media" for trying
to exclude common folks are getting mad at the wrong people.
Prosecutors, not journalists, are the ones who are intent on
narrowly defining who's a legitimate journalist and who's
not.
* Peace, joe! I know Miller was actually sucking up to govt
officials, not standing up to them.
|8.12.05 @ 1:57PM|#
Shelby,
You "do" believe Iraq posed a threat to us in the future, even
given what we've learned since the invasion?
Or you "did" believe Iraq posed a threat to us in the future?
The second one is mistaken, but still within the realm of the
plausible. But no reasonable person can look at the evidence we've
gathered since March 03 and conclude, yep, we were right, Iraqi was
about to threaten us.
"Why wait until a plainly hostile Iraq succeeded in rebuilding its
weapons programs and sold the results to terrorists?" Because, as
many of us concluded before the war, and most people have come to
realize since the war, Iraq was not even trying to rebuild its
chemical, biological, and nuclear programs. Forget succeeding, not
even trying.
|8.12.05 @ 1:59PM|#
Peace, Tim! I said before, I would support a federal jouralist shield law. They DO give the press another arrow in their government-watching quiver.
|8.12.05 @ 4:38PM|#
joe,
Then I guess I'm unreasonable, at least by your lights. I never
said Iraq was "about" to threaten us -- I said they would, at some
point. Not directly, but by aiding, arming and sheltering
terrorists. Just as Afghanistan did not directly "threaten" us but
the Taliban still had to go. And I find it incomprehensible that
anyone could seriously claim Hussein's Iraq never intended to
rebuild its chem/bio/nuclear weapon programs.
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