Jay Rosen has come up with an intriguing solution to Novak's alternating silence and taunting about the Plame affair: vote him off of the island until he reveals what he knows. Have all other members of the journalistic profession shun him until he fesses up.
I, for one, have had it with Robert Novak. And if all the journalists who are talking today about "chilling effects" and individual conscience mean what they say, they will, as a matter of conscience and pride, start giving Novak himself the big chill.
That means if you're a Washington columnist maybe you don't go on CNN with him-- until he explains. If you're a newspaper editor you consider suspending his column until he explains. If you're Jonathan Klein, president of CNN/US, you take him off the air until he decides to go on the air and explain. If you're John Barron, editor of the Chicago Sun-Times, you suspend your columnist (with pay, I should think); and if Barron won't do it then publisher John Cruickshank should.
If Novak says he can't talk until the case is over, then he shouldn't be allowed to publish or opine on the air until the case is over. He should know the rage some of his colleagues feel. Claiming to be "baffled" by Novak's behavior may have been plausible for a while. With Miller now sitting in jail, and possibly facing criminal charges later, "baffled" is sounding lame.
Now, with respect to Novak, I actually suspect he has talked to the Grand Jury and received instructions, like everyone else, not to reveal what he has said (mind you, I'm not entirely convinced Novak has told the truth to the Grand Jury). So I'd prefer he comply with Fitzgerald's request and just shut up. But if journalists want to vote him off of the island for being a jerk, I'm cool with that.
But with regard to the spectacle of Judy Miller sitting in jail, I much prefer the solution offered by Matt Welch at ReasonOnline (linked via Rosen):
Solution: Pass a federal shield law, but one that protects journalism, not journalists.
More than enough ink has been spilled, including by me, on the thorny legal and potentially constitutional issue of who is entitled to journalist-shield protection (which is currently on the books in 31 states and the District of Columbia). Do bloggers qualify? Will the government be put in the creepy position of credentialing reporters? The Plame case has given renewed push for a new federal shield law, giving significant though not absolute protection for journalists against being compelled to reveal their sources and notes.
As the bill percolates through committee, here's my solution to the central conundrum: Offer the protection to any citizen who is in the process of conducting journalism. Judith Miller and Matthew Cooper clearly identified themselves as working on articles they hoped would be published. That's journalism. Similarly, freelance writer Vanessa Leggett—who was shamefully jailed for 168 days a few years back for refusing to cough up notes on a Houston murder she was compiling for a book, after the Justice Department successfully argued she was not a "working journalist"—would have also qualified.
Non-"professional" bloggers, too, could qualify, in the extremely unlikely event that A) they were actually compiling original data worth subpoenaing, and B) they had identified themselves to interview subjects as working on something to be published. Making this determination would be far less complicated than the current federal shield bill's messy attempt to define a "covered person" by publication or outlet.
Therapists, lawyers, priests, and spouses all have at least some protection against having their confidential conversations made into fodder for rampaging prosecutors.
The First Amendment that we're talking about protecting here, after all, does not protect journalists. It protects the press (which at the time the Amendment was written had a lot more to do with equipment--the right to own and operate a printing press--which was still or had recently been severely restricted in most of Europe).
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The rest of the First Amendment we take to apply to everyone, but not the press bit. Press protection has evolved to mean a legal right for a limited class of people--journalists--that doesn't have a legal definition. By contrast, most of the other roles that enjoy protected confidentiality--therapists, lawyers, doctors, and (heterosexual) spouses--have a credentialing system that clearly indicates whether or not a person qualifies for the protection. (The exceptions are priests and same-sex spouses in most states.) People can be disbarred or lose their medical license if they violate the standards of their profession. But not journalists. They just keep migrating to increasingly discredited media outlets every time they violate standards of their profession.
Now I'm definitely not advocating credentialing journalists. But I am advocating thinking seriously about the activities a person is engaged in before we give them shield privileges as a journalist.
Which gets me to where I disagree with Welch. I'm not so sure that Miller really was conducting journalism when she spoke with Rove or Libby or whomever (I also disagree with his certainty that no crime has been committed, but that's another matter entirely). Let's look at what Judy Miller has been up to for the last several years.
Acting as Administration mouthpiece in the leadup to war
Michael Massing (His NYRB article "Now They Tell Us" is now behind subscription wall; I'm transcribing from a hard copy--here's a good summary) shows how Miller's stories served as some of the most crucial pieces of "evidence" of Saddam's WMD programs when the Administration made their public case.
...administration officials were clearly delighted with the story. On that morning's talk shows [after Miller's aluminum tubes story appeared], Dick Cheney, Colin Powell, Donald Rumsfeld, and Condolezza Rice all referred to the information in the Times story. "It's now public," Cheney said on Meet the Press, that Saddam Hussein "has been seeking to acquire" the "kind of tubes" needed to build a centrifuge to produce highly enriched uranium, "which is what you have to have in order to build a bomb." On CNN's Late Edition, Rice said the tubes "are only really suited for nuclear weapons programs, centrifuge programs." She added: "We don't want the smoking gun to be a mushroom cloud"--a phrase lifted directly from the Times.
In these stories, significantly, Judy MIller downplayed the evidence of outside experts (like David Albright of the Institute for Science and International Security, who called Miller to tell her there were serious doubts about the aluminum tubes) who discredited Administration talking points, while playing up Administration spokespersons' "confidence" that Saddam did have WMD programs. (Massing even notes that Joby Warrick, whose beat was the environment, managed to sniff out outside experts who were questioning the Administration and managed to identify the Iraqi defectors as liars.) In other words, just like the Office of Special Plans that stovepiped intelligence to ensure the US had a casus belli, Judith Miller bypassed normal journalistic techniques to contribute to the construction of a casus belli. When asked about her work on WMD's, Miller pretty much abdicated the position of a journalist.
"my job isn't to assess the government's information and be an independent intelligence analyst myself. My job is to tell readers of The New York Times what the government thought about Iraq's arsenal." (emphasis mine)
As Massing comments,
Many journalists would disagree with this; instead, they would consider offering an independent evaluation of official claims one of their chief responsibilities.
Particularly, I would add, if said journalist had an extensive background in the subject (if you've written two books related to terrorism and WMDs, then you certainly seem to claim the role of an independent analyst) and if outside experts are calling you to dispute Administration claims.
Conceding all journalistic independence when reporting on WMDs from Iraq
Miller was embedded in the Mobile Exploitation Team Alpha while in Iraq. Once again, she seemed willing to sacrifice all journalistic integrity to give the story the Administration wanted her to find. In one story she reported about an Iraqi scientist who had led the Americans to a WMD find--without interviewing or naming the Iraqi scientist. As Jack Shafer describes, this was the kind of "journalism" Miller was involved in.
In "Illicit Arms Kept Till Eve of War, an Iraqi Scientist Is Said to Assert" (Page One, April 21) Miller disclosed that she agreed to 1) embargo her story for three days; 2) permit military officials to review her story prior to publication; 3) not name the found chemicals; and 4) to refrain from identifying or interviewing the Iraqi scientist who led Mobile Exploitation Team Alpha to sites where he maintained Iraqis had buried chemical precursors to banned chemical weapons. Although Miller didn't talk to the scientist, the military allowed her to view him from afar. She writes, "Clad in nondescript clothes and a baseball cap, he pointed to several spots in the sand where he said chemical precursors and other weapons material were buried."
But then it got worse. Judy Miller started playing an active role in the team she was "embedded" with in Iraq, acting as intermediary between it and Ahmad Chalabi and intervening in the chain of command. Howard Kurtz does Miller the honors here.
In April, Miller wrote a letter objecting to an Army commander's order to withdraw the unit, Mobile Exploitation Team Alpha, from the field. She said this would be a "waste" of time and suggested that she would write about it unfavorably in the Times. After Miller took up the matter with a two-star general, the pullback order was dropped.
The MET Alpha team was charged with examining potential Iraqi weapon sites in the war's aftermath. Military officers critical of the unit's conduct say its members were not trained in the art of human intelligence -- that is, eliciting information from prisoners and potential defectors. Specialists in such interrogations say the initial hours of questioning are crucial, and several Army and Pentagon officials were upset that MET Alpha officers were debriefing Hussein son-in-law Jamal Sultan Tikriti.
"This was totally out of their lane, getting involved with human intelligence," said one military officer who, like several others interviewed, declined to be named because he is not an authorized spokesman. But, the officer said of Miller, "this woman came in with a plan. She was leading them. . . . She ended up almost hijacking the mission."
Said a senior staff officer of the 75th Exploitation Task Force, of which MET Alpha is a part: "It's impossible to exaggerate the impact she had on the mission of this unit, and not for the better." Three weapons specialists were reassigned as the unit changed its approach, according to officers with the task force.
Several military officers say Miller led MET Alpha members to Chalabi's compound in a former sporting club, where they wound up taking custody of Sultan, who was on the Pentagon's "deck of cards" of the 55 most wanted Iraqis. The April trip to Chalabi's headquarters took place "at Judy's direction," one officer said. (emphasis mine)
Once again, this is a case where Judy Miller actively intervened in what is effectively a criminal investigation, delaying trained interrogators from questioning a "suspect." And in order to pull off this kind of intervention, Miller wielded journalism as a threat, not as a tool for informing the public.
An Army officer, who regarded Miller's presence as "detrimental," said: "Judith was always issuing threats of either going to the New York Times or to the secretary of defense. There was nothing veiled about that threat," this person said, and MET Alpha "was allowed to bend the rules."
Leaking information in a terror investigation
Josh Marshall has been all over this one.
A little more than a year ago, I reported on TPM how Fitzgerald had quite aggressively investigated another Bush White House leak in late 2001 and early 2002. Fitzgerald had been investigating three Islamic charities accused of supporting terrorism -- the Holy Land Foundation, the Global Relief Foundation, and the Benevolence International Foundation. But just before his investigators could swoop in with warrants, two of the charities in question got wind of what was coming and, apparently, were able to destroy a good deal of evidence.
What tipped them off were calls from two reporters at the New York Times who'd been leaked information about the investigation by folks at the White House.
One of those two reporters was Judy Miller.
Now as Marshall points out, it's less clear that Miller is directly negligent here. Certainly, Marshall's original source believed the White House had done nothing wrong (although given John Ashcroft's habit of tainting terrorist cases by leaking to the press about them, I wonder). But we'll never know. Fitzgerald was unable to get the evidence he subpoenaed from Miller, and therefore was unable to determine whether the White House leak was deliberate sabatoge of a terror investigation or not. And if it was sabatoge, then Miller not only took an active part in the sabatoge (tipping the subjects of the investigation) but also hid that act by claiming journalistic privilege.
Shilling to discredit the UN
For a while, it looked like the NYT had decided they were just going to bury Judy somewhere so the Grey Lady would no longer be embarrassed by the shame of Judy Miller. But last year Judy reappeared, once again serving as a vital member of the Administration's media campaign du jour, this time discrediting the Oil for Food program and the UN more generally. This time I'll let Russ Baker describe Miller's activities.
Volcker found that the Oil for Food chief, Benon Sevan, acted in a way that "presented a grave and continuing conflict of interest" and was "ethically improper"--and can't explain cash he received. The report did not, however, suggest that Sevan's actions indicated widespread or higher-level graft. But an examination of Miller's work shows that she used contrivances of tone and framing and selective citation of biased sources to create a headline-generating super-scandal--one that Volcker's newest (March 29) report confirms to be thus far without serious foundation.
Since October 22 she has produced no fewer than twenty-one articles on the matter, nine of them centered on criticism by Capitol Hill figures with no love for the UN. She reported the scandal, GOP senators and House members investigated and she reported the investigations themselves as evidence that corruption was far more widespread than the facts indicated. (Baker goes on in some detail.)
Folks, this resume is not the resume of a journalist. At best, Judy Miller has been given free reign by some newspaper editors to repeat the Administration's talking points almost verbatim, with no hint of skepticism or analysis. In this, she is playing the role of PR flack, no better than Armstrong Williams. In two more troubling incidents (the Global Relief leak and in her interference on MET Alpha) Miller seems to have stepped outside the role of journalist entirely, acting as an active executor of (presumably) Administration plans. In these cases, her role as a journalist has served only as a threat to compel compliance or as a cover to hide wrong-doing.
Most importatly, nowhere is there evidence in Judy Miller's recent work of an effort to inform the public.
Which is why I'm not losing any sleep over Judy Miller's incarceration. Frankly, I suspect she'd be in jail even if there were a Federal shield law. Fitzgerald seems to have met the exceptions that most existing shield laws have (he seems to have convinced judges who have seen his classified reports that a serious crime was committed and there is no other way to get the information).
The examples of Bob Novak and Judy Miller should point to the danger of uncritical shield laws. We know the Administration has repeatedly paid "journalists" to parrot their talking points. By all accounts, this turns "journalists" into PR figures who circulate the viewpoints their employers pay them to circulate. Now I have no evidence that either Bob Novak or Judy Miller are on the take. But there is abundant evidence that Novak and Miller (especially) are favored by the Administration because they will uncritically parrot the talking points the White House wants to circulate.
Without some scrutiny of the role individuals claiming journalistic privilege are playing, we're basically tarnishing the First Amendment and turning it into a tool for propagandists to hide their tracks. And possibly in the case of the Global Relief investigation and clearly in the Plame investigation, it has become a tool to cover up crimes.
Novak and Miller should have been voted off the journalistic island years ago. They should have been fired for their uncritical "reporting." But even if their employers are unwilling to vet them, I don't see why two people so clearly acting outside the standards of journalism should receive the privilege accorded real journalists.