Jailing Journalist Judith Miller
July 06, 2005
Like other repressive governments, the United States is now jailing journalists for just doing their jobs.
Judge Thomas Hogan’s decision to haul Judith Miller off to prison for four months is a blow to journalism, and a blow to democracy.
Judith Miller was collecting information legally, and she was honoring her word to her source. Neither should be a criminal offense.
When a judge forces journalists to disclose their sources, that judge is interfering with the customary way journalists do their jobs, and these jobs, by the way, are the only ones expressly protected by the Constitution.
And that’s for good reason: The founders understood that a free press is vital to the functioning of our democracy. Any time the government interferes with the press, it is limiting freedom. That’s why the words of the First Amendment are so unambiguous: “Congress shall make no law . . . abridging the freedom of speech, or of the press.”
Like bricklayers who use mortar, investigative journalists rely on the anonymous source. (We can do our work without it, but it’s not nearly as good.)
Make no mistake: This decision will force potential whistleblowers to have second thoughts whenever they are contemplating leaking information to a journalist who is promising them confidentiality.
At this moment in our history, we need whistleblowers more than ever, since the Bush Administration is putting a “top secret” stamp on every document except the weather forecast.
This is one reason why Bush supporters are so happy with the decision: They want the press muzzled, so Bush can keep advancing the conservative counterrevolution. (Another reason is they hate The New York Times.)
I do not hold Judith Miller in high esteem. In fact, I hold her in very low esteem for funneling White House propaganda onto the front page of The New York Times in the lead-up to the Iraq War.
But she is acting courageously in going to prison.
A lot of people on the left are gloating at her predicament. Not me. It’s not Judith Miller I worry about. It’s free speech and accountable government.
Judge Hogan and Prosecutor Patrick Fitzgerald seemed more concerned with flexing their authority than in pursuing justice in this instance.
They showed their disrespect for the spirit of the First Amendment and their disdain for the Fourth Estate by sending Miller to jail.
I realize the Supreme Court ruled in 1972 that reporters do not have a First Amendment right to protect their sources. And I realize the current Supreme Court refused to hear a challenge to Judge Hogan’s civil contempt ruling.
But those decisions are wrong, and Miller and The New York Times are to be praised for being willing to pay the price for their principled stand of civil disobedience.
Forty-nine states have some sort of shield law for journalists. But we need a federal shield law, as well.
It’s bizarre that courts recognize a special privilege for doctors and their patients, therapists and their patients, lawyers and their clients, and preachers and their parishioners, but do not recognize a special privilege for journalists and their sources. Where is the logic here, especially given the special place the First Amendment holds for journalists?
But Hogan and Fitzgerald dismissed any and all claims that Miller and her lawyers made, including the plea for house arrest.
Hogan and Fitzgerald even threatened her with the much more serious charge of criminal contempt or obstruction of justice charges, and Fitzgerald mocked the hardship of prison. “Certainly one who can handle the desert in wartime,” as Miller has in Iraq, can handle prison life, he told the court.
Easy for him to say.
The irony in this whole thing is that Robert Novak—who first disclosed the name of Valerie Plame and did the White House’s dirty work in the process—appears to be off scot-free whereas Miller, who didn’t even write about the Plame case, is now in custody.
(Now I’m against any journalist going to prison for disclosing the name of a CIA agent. I believe the law barring such disclosure by a journalist is a clear violation of the First Amendment. If I obtained the names of the CIA agents at Bagram Air Force Base who murdered detainees, I ought to have the right to publish their names, and the American public ought to have a right to know about them.)
If at the end of the day all that Fitzgerald achieves is the jailing of Judith Miller, he will have made a mockery of his investigation.
Someone high up in the White House leaked this information. Now it may be difficult for Bush to find Osama bin Laden, but how difficult is it for him to find this leaker?
The point is, Bush never wanted to find the leaker, and he doesn’t want the leaker to go to jail.
The reason is obvious: The leaker was merely acting as the President’s thug, trying to silence a critic of his Iraq policy by going after the critic’s wife.
Now the question remains whether Fitzgerald will do the President’s bidding, too, and fold his tent, or whether he will go after Karl Rove.
According to Michael Isikoff of Newsweek, the e-mails that Time already has surrendered to Fitzgerald show that Rove was one of the sources for Matthew Cooper’s story on Plame. One of Rove’s lawyers has confirmed that Rove and Cooper talked about the story three or four days before Novak first published his own, Isikoff writes. This is significant because Rove can no longer maintain that he simply passed information on after the Novak story broke.
I yield to no one (well, maybe to Jim Hightower and John McCain) in my disgust for Karl Rove, but even if the source Judith Miller is protecting is named Karl Rove, I still believe that she is doing the right thing by not breaking her vow of confidentiality.
We on the left cannot be situationalists.
If, in principle, journalists should have the right to protect their sources, then we must defend this principle even when we despise both the journalist and the source.
Reader Reaction
Judith Miller and Freedom of the Press
Protecting whistle blowers and our cherished Freedom of the Press requires holding Judith Miller to account, not lauding her for defying a federal prosecutor trying to get to the bottom of what looks to be a criminal matter. Joe Wilson is the whistle blower here, not Judith Miller, who demands the "right" to collude with top government officials to penalize insiders who bring the truth to the American public against her and her lying government partners. The term "partners" is not too strong considering her behavior at the New York Times -- WMD, Chalabi, and other incidents where she has behaved more like a political operative than an independent journalist.
There is reason to believe Miller has crossed over into criminality -- that's one thing the prosecutor is trying to determine and her defiance starts to look more like self- protection than protecting a source.
The New York Times, Miller's employer, has not functioned responsibly here and deserves censure for abetting her behavior; they are very much an interested party and their power-wielding to protect and defend her looks like so much special pleading.
Freedom of the Press is very much alive in the land, both as a cherished principle and in practice; the rise of political blogs testifies to that. It is the bankrupt captains of the press who have dishonored the tradition and practice in this case and so many others over the last few years. Defending the odious Judith Miller as a paragon of the free press is a serious mistake, one serving only to tarnish our cherished Freedom of the Press if the link is successfully made. I don't see it though, more likely the compromised press establishment will bring still more opprobrium on themselves, speeding the day when they will be replaced by others less corrupted, an outcome to be hoped for.
Mike Bertrand
July 9, 2005