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.

Comments

[Paul]

Uh, what WMD fraud?

[Adam]

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.

[sage]

Hey joe, you made the blogosphere! Congrats.

[cicero]

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.

[joe]

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.

[NaG]

Isn't it "bupkiss?"

[joe]

"...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.

[theCoach]

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).

[Shelby]

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]

Also, the left won't back someone for sticking to thier principles, because that implies that standards exist, and we can't have that.

[rafuzo]

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?

[thoreau]

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.

[joe]

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.

[joe]

Master Yoda, please, what is this "WMD Fraud" of which I hear?

We're all so confused. So very, very confused.

[rafuzo]

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.

[power forward]

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?"

[rafuzo]

I like option #2, thoreau. Maybe the hit-n-runners will follow suit.

[John Q]

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?

[M1EK]

rafuzo,

You're a liar. Please stop posting.

[joe]

'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?

[joe]

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.

[rafuzo]

M1EK,

Show me some anonymous government sources that will testify to that fact and you've got yourself a deal.

[fluffy]

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.

[fluffy]

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.

[joe]

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]

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?

[joe]

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.

[Number 6]

If the communication itself is a crime, (and that's questionable), then shouldn't Miller be able to invoke the 5th Amendment?

[rafuzo]

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?

[power forward]

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.

[Number 6]

Joe-we crossposted. Ignore my latest question.

[Peter K.]

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.]

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.

[joe]

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.

[theCoach]

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?

[JMoore]

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]

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.

[SR]

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.

[joe]

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.

[joe]

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.

[JW]

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?

[Shelby]

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?

[JMoore]

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 🙂

[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.

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.

[joe]

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.]

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.

[JMoore]

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!"

[Gareth]

JW,

You can only invoke the Fifth Amendment on the grounds that what you say may incriminate *you*, not someone else.

[joe]

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.

[joe]

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.

[D]

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]

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.

[Word]

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.

[joe]

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]

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.

[JW]

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?

[joe]

"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.

[JudyJudy]

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?

[joe]

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]

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.

[JW]

Disregard my last post. I see now that it was answered before I finished typing it.

[Jim Walsh]

Love the Lesley Gore reference. What's she doing these days, anyway?

[theCoach]

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]

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.

[alkurta]

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.]

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.

[joe]

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.

[Shem]

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.

[Shelby]

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]

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.

[JMoore]

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]

JMoore!!!!

ARGH!!!!!!!! I'm having grade school exam flashbacks from your posting!!!

🙂

cheers,
drf

[Shelby]

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.

[JMoore]

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.
🙂

[JMoore]

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.

[Steve]

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.

[JMoore]

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]

🙂

How 'bout just building a bridge out of her...
(applies to witches and stonewall(ing)

[drf]

🙂

Or we could build a bridge out of her (which works for witches and stonewall(ing))

[Matt]

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.

[joe]

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.

[joe]

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.

[Shelby]

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]

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.

[joe]

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.

[joe]

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.

[Shelby]

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.