Editing or Writing Briefs
An American Hero?

Spy vs. Spy

There is no question that Judith Miller of The New York Times and Matthew Cooper of Time magazine are in contempt of court. I admire them for their principled opposition to the law's requirement that they reveal confidential sources to a federal grand jury. It is courageous civil disobedience.

The antihero in this tale is Patrick J. Fitzgerald, a pug-faced federal prosecutor bent on making an ass of the law. He wants the reporters jailed in a federal penal facility. Why? The better to punish them. House arrest won't do.

Shame on Fitzgerald.

That there is no federal reportorial privilege is clear. I would go so far as to say that there should not be one. Secrecy breeds all sorts of shenanigans. Want to hurt a foe? Become a reliable source and jump all over an enemy; don't do it for attribution and you can have your cake and eat it, too.

The identity of sources should be discoverable as a matter of right, but the discovery should take place in the context of adversarial proceedings.

So what's wrong with hauling reporters in before a grand jury?

The grand jury process has become the Government's unnamed source. The process is shrouded in secrecy and there is no protection for potential targets of a Governmenal inquiry. The grand jury and the press are supposed to play a similar role: protection of the people. Federal prosecutors now behave like pimps with a stable of ready, willing and able stable to parade before grand jurors who see only what the Government wants them to see.

Fitzgerald is as humorless as Inspector Javert. "Miller and The New York Times appear to have confused Miller's ability to commit contempt with a legal right to do so." Fitzgerald is tone deaf to civil disobedience.

Miller and The Times are disobeying a law they view to be bad. (Cooper's editor, Richard Pearlstine, played coward and turned over material to the feds.) They do so not out of spite, but to protect the terrain of the Fourth Estate, a perch outside the system of constitutional checks and balances. It is a vantage point from which to view and report on government folly.

When the press abuses its role, it should be subject to sanctions and money damages. Hence, no journalistic privilege. But let's not get melodramatic and start jailing reporters because they can outsmart the Government at the game of secrecy.


Cooper Caves In Read More


Miller order jailed. That's herosim.