To Do List

At the top of today's to do list? Cancellation of any subscriptions either I or my office have to Time Magazine. I don't care to read a publication that bends and spreads for federal prosecutors.

Herewith a piece I wrote this morning for a newspaper ...

Truth, justice and the American way are not synonyms, and it is dangerous to think so. The case of Judith Miller of The New York Times shows us why.

Ms. Miller is now in a federal prison, where she will serve a sentence of up to 120 days for refusing to obey the order of a federal judge. She was ordered to provide the name of a confidential source to a federal grand jury. She refused, claiming that to do so would undermine the truth-seeking function of journalists.

Our law recognizes some instances in which a person can lawfully refuse to testify. The most famous example is the Fifth Amendment privilege which permits a person to avoid saying things that may incriminate him. Privileges apply to such relationships as doctor and patient, and to spouses.

There is no journalistic privilege, however.

Ms. Miller was summoned to a grand jury by a federal prosecutor investigating who leaked the name of a confidential CIA agent named Valerie Plame. Ms. Plame’s husband was a senior State Department official who was at odds with the administration’s claim that Iraq possessed weapons of mass destruction.

Some suspect that White House officials leaked Plame’s name to the press in an effort to intimidate or punish her husband for breaking ranks with the party line. If these allegations are true, then a serious federal offense was committed.

Ms. Miller did research on the story. So did Time Magazine. Federal prosecutors subpoenaed the reporters, requiring that they bring their notes identifying their sources. Both news organizations refused to do so, and argued all the way to the United States Supreme Court that there should be a journalistic privilege. The Supreme Court was unpersuaded, and now the reporters have no legal options left.

Time Magazine’s editor, Richard Pearlstine, decided that his magazine should comply with the court’s order, reasoning that no American is above the law. He researched cases in which the Supreme Court and the president collided. In two famous case, Eisenhower’s seizure of steel mills in the Korean War, and Nixon’s refusal to turn over Watergate tapes, the Court held the acts of the president unlawful. Both presidents obeyed the Court.

The fault in Pearlstine’s reasoning lies in the assumption that a president is like a news organization. The presidency, like the Supreme Court, is a constitutional office with reciprocal rights and duties arising under law. The press is not a constitutional office. It stands outside the constitution; it has rights, to be sure, as do we all, but it is not a creation of government.

Time Magazine’s decision to roll over and play dead in response to federal prosecutors is lamentable. The magazine should report the truth, wherever it leads, and it should do what it believes necessary to preserve the truth-gathering process. If that means protecting the names of confidential informants, then it should be prepared to defy the law to protect the principle.

That is what civil disobedience involves. Henry David Thoreau engaged in such disobedience when he refused to pay a poll tax used to fund the war with Mexico. Rosa Parks did it when she sat down in a seat reserved for white people on a Detroit bus. Justice collided in those instances with what the American way as defined by our laws required.

Judith Miller’s act is not one of defiance. It is an act of principled disobedience. The law, the American way, says no reporter can refuse to identify his or her source if a federal prosecutor summons them to a grand jury and demands answers. Ms. Miller and the Times believe that would undermine the newspaper’s ability to report the truth. So truth and the American way collide.

I am proud of Judith Miller’s refusal to obey the order of the Court. She has exercised a right to refuse to obey and now endures the punishment that follows. In so doing, she forces us to consider whether the law is right. She has broken with the herd and now stands alone beckoning to the rest of us to look and consider the things she sees.

Judith Miller and The New York Times have taken a firm stand on principle; the same cannot be said of Time Magazine, my subscription to which, I am happy to report, will be cancelled today.

Comments

[Elizabeth J. Kates]

You write:

"Some suspect that White House officials leaked Plame’s name to the press in an effort to intimidate or punish her husband for breaking ranks with the party line. If these allegations are true, then a serious federal offense was committed."

If this is true, or even suspected, I fear that the Fourth Estate is standing on its misguided head. In recent years, it seems that "the press" too often has been used as a bull-horn for both leaked truthful but misleading as well as outright false information from government officials to the public toward the end of manipulating public opinion.

The interests of selling newspapers and magazines and being on the "in" with government officials in order to have access to this kind of information has taken precedence over investigative journalism, with "journalists" instead re-writing canned press releases and fawning and slobbering over the word from official spokespersons.

In large part the traditional news media have fallen down on the job for some time now. Not so long ago, the New York Times essentially admitted as much in connection with its helping to perpetuate the nonsense about "weapons of mass destruction" and similar government official disinformation campaigns. (But following that, I haven't noticed much mending of ways.)

It seems to me that the highest ethical choice of "government's watchdog" would be to reveal THESE kinds of shennanigans and inappropriate acts by government officials who are bent on turning the press into the government's propaganda machine -- and to too great an extent, in fact have succeeded in doing so.

Not to mention that citizens such as Valerie Plame who serve all of us by agreeing to engage in dangerous jobs based on the assurance of confidentiality surely also are owed some kind of duty.

Does reason ever dictate in a particular case how far the asserted journalistic privilege should go? Or do blanket assertions of "truth-finding" and a pretext of virtuous purpose plus an official press pass always carry the day? Does it matter what kind of information the "confidential source" provided? Should there be, perhaps, an exception for deliberate leaks of inappropriate or false information by government insiders? Perhaps it's time to define or redefine some standards. Even attorney-client privilege gives way under certain circumstances.

And just who is "the press" to whom we should apply all these highfalutin slogans and higher agendas without thinking about the reasons for them? Does source confidentiality constitute a loophole for just about anyone who maintains an internet blog or website? If not why not. And if so, perhaps that calls urgently for some standards. I strongly suspect that were the drafters of our constitution to visit us today, they would say that use of the term "press" was never intended to create special privileges for big commercial publishing interests, but rather -- given that there were only two means of widely disseminating information in those days (speeches before crowds and via a machine that could duplicate the written word, "the press") that all that term meant was that written speech was no different from public oratory.

We lose a lot when the slogans take precedence over reason. Correct me if I'm wrong, but I just do not recall seeing a large-type above-the-fold headline in the New York Times saying "The President Lied."

liz

[jw]

"Judith Miller’s act is not one of defiance. It is an act of principled disobedience."

Maybe, but do you have information that the rest of us don't have? Is it not possible that she is claiming "confidentiality of source(s)" so that she doesn't have to plead the 5th? That is, do you know that she isn't a *source* of the information that Wilson's wife Plame is CIA? Are you not just making the assumption that her motives and acts are pure?

We do know that she, in advance of our invasion of Iraq, used Chalabi as a primary informant and the NYT has made only limp acknowledgment of her role in deceiving the public in the service of the administration. We know that she has written widely about WMDs and may have acquired knowledge, or rumor, of Plame's job and might have herself passed that to the WH. Such passing would not itself be a crime, but might it not be obstruction of justice if she doesn't tell that to the GJ?

Maybe the special prosecutor is pursuing threads that you're not imagining--at least, not imagining in public?

[Mark]

You admit that Miller has no special privilege to avoid testifying, but then assert that she is a hero for not doing so.

Her argument boils down to this: I shouldn't have to testify about what I was told because I promised the person who told me I wouldn't tell.

So what? Could anyone else assert the same thing to avoid testifying? The answer, as you know, is no. Judith Miller is not Rosa Parks -- you need a reality check, my friend.

[Aaron]

I find an inconsistency between the position that "there is not, and should not be, a journalistic privilege", and "but reporters should nonetheless practice civil disobedience and go to jail to protect their sources." That is, if the principle of protecting anonymous sources is so great that reporters should submit themselves to incarceration in order to protect it, why is that value insufficient to justify some form of legal privilege? Or, to put it another way, if we are addressing a principle undeserving of legal protection, why should a reporter be expected to go to jail to protect it? One would hope that a reporter practicing civil disobedience in order to protect a source sees value in a journalistic privilege - because engaging in civil disobedience for its own sake, as opposed to in advancement of such a principle, seems impractical and unwise.

As for Miller, who knows? Maybe she is standing on principle. Maybe she is more concerned about impeding her ability to "report" in her traditional style - that is, waiting for an "anonymous source" with close ties to the Bush Administration to call her up and give her information which, true or false, will score her a front page story. I find it interesting that her journalistic ethics apparently compel her to protect her anonymous sources, but don't appear to inspire her to verify or fact-check the rumors and allegations they whisper into her ear.