Judith Miller—The New York Times reporter now in federal prison for refusing to burn a source before a federal grand jury investigating an executive branch leak of a former covert CIA officer's identity—is a hero to her fellow journalists, a martyr to the media's constitutional mission of serving as a restraint on government abuse. In contrast, the public doesn't seem to give a damn. Why should journalists have special privileges before a grand jury which ordinary citizens do not? Why should non-journalists care? Why indeed.
One answer is that many federal courts and, in a limited way, even the Supreme Court have held that the First Amendment does give journalists special testimonial privileges before a grand jury. Not a lot. But some. A second answer is that 49 of the 50 states either by legislation (31 states) or judicial decision (18 states) have reporter shield laws of varying strength. A similar state level consensus led the Supreme Court in 1996 to recognize a federal common law testimonial privilege for psychotherapists and social workers much as it had earlier done for lawyers and married couples. On Tuesday, the American Bar Association endorsed federal statutory protections for journalists.
The First Amendment issue in Miller's case has been more widely reported than the federal common law privilege, but both are key to understanding why Judith Miller's conviction and imprisonment has set a new and ominous precedent which can and will be used against non-journalists as well.
Testimonial privileges require a court to weigh the government's evidence as to why they need her testimony. 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. They were given no opportunity to defend her against, question, or rebut the secret evidence the courts relied upon exclusively in convicting her. Indeed, a full eight pages of the D.C. Court of Appeals decision discussing and analyzing this secret evidence was redacted from the published opinion.
Judith Miler is unique, the first American ever to be sent to jail based on facts she never saw and a federal appellate opinion she was not permitted to read. She won't be the last. Make no mistake: This will happen again and again whenever a case involves "national security,""the war on terror," or any combination thereof. This is too big a weapon for the executive branch to ignore, especially since it was fashioned by the most prestigious of the U.S. Courts of Appeals and approved by the Supreme Court. Let's face it. If they can do it to a reporter for The New York Times, they sure as hell can do it to anyone else.
Sadly, the mainstream media have overlooked this aspect of Miller's conviction and, as a consequence, the pubic has as well. While some in Congress have introduced legislation to provide for a federal reporter-shield law akin to those used by states, no federal shield law being considered would have protected a reporter from what happened to Miller.
Before Miller's conviction, legislation to prevent such a menacing miscarriage of justice would have seemed unnecessary.
In 1948, in the case In re Oliver, the Supreme Court reversed the conviction where a grand jury had jailed a witness for contempt based on the secret testimony of another witness . Justice Hugo Black wrote:
In view of this nation's historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public, the Fourteenth Amendment's guarantee that no one shall be deprived of his liberty without due process of law means at least that an accused cannot be thus sentenced to prison.
In 1983, in In re Kitchen, the Second Circuit U.S. Court of Appeals in New York reversed a contempt conviction before a grand jury where some of the government's evidence was secret. The Court stated:
We hold that in the sort of case now before us, a fair opportunity must at least include…the right to confront all of the government's evidence, both documentary and testimonial, unless particular and compelling reasons peculiar to the grand jury function require some curtailment of the latter right.
"Some curtailment" of that right is one thing; its complete elimination is something else entirely. Like the other two branches of government, the judiciary has an inherent hostility toward the media which may help explain why enemy combatants have fared far better in federal courts than reporters. In Hamdi v. Rumsfeld, the Supreme Court held that
[a]ny process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short.
The Fourth Circuit U.S. Court of Appeals held in U.S. v. Moussaoui that enemy combatants had a due process right to review all evidence in the government's possession that was material to his defense. Earlier this year, another judge from the same U.S. District Court for the District of Columbia that jailed journalist Miller gave a better deal to Guantanamo detainees, holding that detainees' counsel with security clearances were entitled to access to classified evidence being used against their clients.
The infamous Court of Star Chamber was established in 1487 in England and abolished in 1641. It started out with good intentions—to ensure the fair enforcement of laws against prominent people—but it didn't stay that way. During the reign of King James I and his son Charles I, court sessions were held in secret. Evidence was presented in writing, not by witnesses. The American writer and poet Edgar Lee Masters wrote of the Court of Star Chamber in its later days that:
[T]he Star Chamber frequently sentenced objects of its wrath to the pillory, to whipping and to the cutting off of ears… The Star Chamber finally summoned juries before it for verdicts disagreeable to the government, and fined and imprisoned them. It spread terrorism among those who were called to do constitutional acts. It imposed ruinous fines.
Fining and sending people to prison based on secret evidence characterized the Star Chamber. The same thing characterizes the federal judiciary today. The only comfort Judith Miller can take from her ordeal is that she didn't have her ears cut off. After all, they are what got her in trouble. She only listened. She never published what her confidential sources told her.