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July 08, 2005


But what do you really think of Miller? Excellent summary... as noted in a response to Armando's post at Dailk Kos, I can support the 1st amendment protection and despise both Miller and Novak.

I suspect sooner rather than later, we''l see what Fitzgerald is up to and see if Rove and Libby conspired to slime Wilson through his wife.... and establish an MO for this WH that will be widely reported, for a change, instead of having the press merely sit back and simply admire the dirty work a la the Note.

Protect their rights. Keep them out of jail. Fuck their reputation.

I thought the issue was that the shield laws protect journalists from revealing sources, but not from testifying as witnesses to a crime -- and if someone committed a crime by outing Plame to Miller then Miller was a witness to that crime.

In other words I thought that "source confidentiality" argument was being used by the defense to complicate what would otherwise be a clear case where she would have to reveal her source because she witnessed the source in an act of crime. Am I off?

Out of curiosity, may I ask the lawyers here what they would expect if Plame had been outed to a priest in confessional? (How about the Islamic equivalent?) Could the priest or cleric be compelled to testify to the conversation?

If "freedom of the press" means pamphlteering, Judith Miller seems to have been practicing it. The real question may be the one that Kagro X keeps raising: does the GOV'T have First Amnendment rights or is it a citizen's right against the gov't? If someone is acting as an organ of the gov't, then are they a journalist, even if they write for the NYT? Most certainly the Founders intended to protect the citizen from the State, and not the State from its citizens. Moreover, Judge Hogan is convinced that a crime was committed, notwithstanding the comments from people all over the blogoshpere to the contrary, and he is the one (along with Fitzgerald) who has presumably seen the evidence. Surely his statements carry some weight.

Judith Miller sullied the Times more than Jayson Blair ever did. (Jayson lied, but nobody died.) Her relationship with Sulzberger is certainly called into question here. Voting them off the island is the least the rest of the profession could do.

The answer is "no," altho most would give up a confessor who comitted a real "crime", like murdering both his parents.

See the Menedez Bros. trial back in the 80s. The gay brother confessed all to his shrink and the shrink testified.

However, this issue once again has been over done ad nauseum because we all know Rove is guilty and want to see him fry.

This story has got little or nothing to do with journalistic ethics, as it is presented, hypocritically.

Lets just say it: we want Rove's head and we are GLAD to see Miller pulling time for protecting the skank.

we all know Rove is guilty

Truly the issue is whether the rule of law is followed and respected (see Gitmo and Abu Ghraib) rather than simply assuming Robe is guilty. Rove may actually not be guilty, it may be Libby.

[OTOH Rove may be guilty of 10,000 other things, so if you can't get Capone for murder, get him on tax evasion. But he has to have done it, first.]

But since there's little federal shield protection, this is a relevant discussion as to what to fight for. And that has to be clearly defined.

Concerning Novak's not being sent to prison because of this issue, is it becasue he has revealed his sources, or because he has the administreation on his side. Big difference, no?

I have never heard a clear explanation of why Miller goes to jail, but the actual leaker does not!

In answer to emptypockets' other question, in a case where classified info is leaked (e.g. Pentagon Papers), the journalist to whom the leak is made is a percipient witness to the crime. Not all whistleblowing involves classified info, but it can, and so the percipient witness distinction would swallow the rule except for cases where the leak involves info about a crime or malfeasance which the leaker witnessed or knows something about. It would preclude writing about a leak of classified info, in other words. In an era when the gov't classifies every embarassing thing, that is too big a loophole.

In an era when the gov't classifies every embarassing thing, that is too big a loophole.

How can this tendency to improperly classify things in the name of propaganda protection be stopped? I mean can an independent commission be set up to review classification request, or is that an oxymoron considering the idea of classification in the first place? How about jail terms for any administration official later found to improperly classify documents through some standards?

There is a traitor loose in White House. American safety from the spread and use of weapons of mass destruction has been compromised. Judith Miller knows who the traitor is. In this time of war, there is only one thing to do: torture Judith Miller until she reveals what she knows. Bush should exercise his constitutional powers and designate her as a Nonperson, an Enemy Combatant, and the oil pots of our Uzbeki allies heated up in preparation for her arrival.

As I wrote nearly two weeks ago at The Next Hurrah, a federal shield law is essential and should protect "journalists" and whoever acts as a journalist, which, of course, often includes bloggers.

There is specific legislation in both the House and Senate. These are H.R. 581, which was sponsored by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.); S. 340, introduced by Sen. Richard Lugar and S. 369, introduced by Sen. Christopher Dodd (D-Conn.)

I hold no brief for Judith Miller or her ilk. She's despicable and your summary, emptywheel, reminds everyone of exactly why. However, shills have always been a plague on journalism, and anybody who thinks this started with the Bush Adminstration or that there was a golden age when journalistic ethics were practiced far and wide by big media are unfamiliar with the history of, say, Hearst, among others. Those of us who have served time in the alternative media did so for a reason.

While people of goodwill can certainly disagree sharply over whether "journalistic privilege" should include cases such as the one Miller has gone to the slam for, I am deeply deeply disturbed with the myopic vengefulness I've seen displayed in this situation, particularly the large number of usually rational people taking a throw-the-baby-out-with-the-bath-water approach when it comes to shielding sources.

I am not an absolutist on shielding journalists (professionals or citizen-journalists). But those who think it will be a simple matter to craft a law that allows individuals practicing journalism to protect the identities of "whistleblowers" while not protecting the identities of "propagandists" will have to do a better job of proving their case before I buy it. Because in the real world, those two are often inextricably entangled.

In the past, I've personally gotten tips and detailed information as well as documents from government employees who essentially represented factions within a government body and were working to bring down their bosses or another faction. They had their own agenda, which sometimes included getting themselves or somebody else into a better job. Hardly whistleblowers. Indeed, sometimes nasty pieces of work. I had to triple-check everything they told me. However, like cops, journalists often have to depend on unsavory snitches or go out of business. Thanks to information given me secretly by people I would never invite into my home - and my own research based on their information - I was able to write numerous stories that embarrassed local or state public officials and in a couple of cases led to their dismissal.

Everybody who has ever done investigative pieces can probably tell you a similar story. Should I, or they, have been able to shield the original sources for these stories? If you reply that it depends on the circumstances, I'm all ears. How exactly would one go about writing legislation that achieves the necessary hair-splitting?

But MB, your argument in no way contradicts my own.

First, because your example clearly shows the actions of a journalist:

I had to triple-check everything they told me.

Even before Plame was subpoenaed, her colleagues were clearly showing that she wasn't doing any of this. As Massing shows, she buried contradictory evidence from independent WMD experts. You, on the other hand, didn't print anything that you couldn't vouch for.

That's the kind of activity I'd like courts to focus on, rather than someone's title. Is someone meeting the minimum standards of professionalism in the story they're seeking? If not, then they don't get privilege. It'd be moot in this case anyway, because presumably Miller STILL wouldn't be talking (perhaps she'd then claim the fifth, which I suspect is more appropriate in this case).

But by supporting Miller as a journalist when it's clear that she was not engaged in journalism, journalists cheapen journalism. It'd be best if folks HAD laughed her out of the profession before it got to this. But barring that, I think it worthwhile to consider whether Miller has, in other ways, upheld her commitment to her profession. I'd argue that simply her statement about whether its her job to assess White House reports undermines her claim to be a journalist.

Further, you don't address Miller's non-jounalistic activity, done under cover of the club of publicity. Pretend for a second that Miller was an Army journalist up on a case of insubordination for overruling her commanding officer. Is this okay because she's a journalist? That's the play she was making.

How would you feel if a corporate spokesperson from Merck claimed journalistic privilege and refused to testify to a Grand Jury investigating Vioxx on grounds that his sources were protected. Is that okay because this person is a "journalist"?

One more point. Part of the reason I think we need to move away from the journalist and to the journalism is to protect people like Vanessa Leggett, who clearly WAS practing journalism.

As I pointed out, freedom of the press was initially protection of the right to own and operate printing presses. At that point, the barriers to entry (money and journeyman skill) put a de facto limitation on journalists. But those barriers no longer exist--everyone effectively own and operate a printing press. Obviously, we can't extend First Amendment privilege to everyone who claims it, because then we'll never be able to prosecute crimes.

So at a time when the barriers to entry are falling, when real journalism is increasingly being practiced by those without titles, and when there are a number of egregious cases of people masquerading as journalists in order to disinform or commit a crime, then you need to rethink the basis of privilege.

I'm not saying throw out the baby. I'm saying focus on the baby, rather than worrying about the spilled bathwater.

The problem may well be definitional. If if were up to me, I'd love to see every journalist (professional or amateur) sign on the dotted line of the Project for Excellence in Journalism's Statement of Shared Purpose. Here are a couple of relevant items:

3. Its essence is a discipline of verification.

Journalists rely on a professional discipline for verifying information. When the concept of objectivity originally evolved, it did not imply that journalists are free of bias. It called, rather, for a consistent method of testing information--a transparent approach to evidence--precisely so that personal and cultural biases would not undermine the accuracy of their work. The method is objective, not the journalist. Seeking out multiple witnesses, disclosing as much as possible about sources, or asking various sides for comment, all signal such standards. This discipline of verification is what separates journalism from other modes of communication, such as propaganda, fiction or entertainment. But the need for professional method is not always fully recognized or refined. While journalism has developed various techniques for determining facts, for instance, it has done less to develop a system for testing the reliability of journalistic interpretation.

4. Its practitioners must maintain an independence from those they cover

Independence is an underlying requirement of journalism, a cornerstone of its reliability. Independence of spirit and mind, rather than neutrality, is the principle journalists must keep in focus. While editorialists and commentators are not neutral, the source of their credibility is still their accuracy, intellectual fairness and ability to inform--not their devotion to a certain group or outcome. In our independence, however, we must avoid any tendency to stray into arrogance, elitism, isolation or nihilism.

But with all due respect to the rule of law and our esteemed judicial system, putting the responsibility for determining whether a journalist has met all the tests of professionalism in the hands of the courts - especially a federal court system which has trended increasingly reactionary in the past 25 years - gives me the heebie-jeebies. This is far different than, say, a libel case in which a "malicious and reckless disregard" for the truth must be demonstrated to get a ruling for the complainant.

Certainly Judith Miller has behaved execrably and beyond the constraints of any ethical journalist on a number of occasions, as you detail so well. However, and I know this gives many of my political bedmates heartburn, Miller is acting as a journalist by refusing to reveal her source. Admittedly, a source with an agenda. Not a whistleblower. A disinformationist. But I've yet to see a persuasive argument about how we can make clear legislatively the distinction between types of sources that can be concealed and the type that cannot. As the old lawyerly adage has it, "hard cases make bad law." I feel the same way about this as I feel about some guilty person who gets off because the cops violated the Fourth Amendment in obtaining evidence. I'd like to see him locked up - or for his criminal behavior to be stopped - but not at the risk that my rights will be lost in the process and my door will be kicked down some night.

The propagandist Judith Miller is a blight on journalism. No doubt about it. Her role as a conduit for Administration bushwah and active engagement in political activity that she also covered without disclosing her own role is detestable. If a federal shield law can be written in such a way as to make a clear distinction between journalistic behavior that is protected and non-journalistic behavior that is not, I'm definitely willing to take a hard look. But, while this may be easy to do in theory, it's much harder in practice, although I think corporate spokesperson vs. journalist would be a relatively easy distinction to make even if the spokesperson had once been a journalist.

By the way, I agree entirely about making journalistic privilege encompass a far larger group of actors than professionals on the payroll of "recognized" media. But, ultimately, you can't shield an abstraction like "journalism" without protecting individuals who practice journalism, however broadly we want to cast the definitional net.

I guess I could ask a different question. Why are you so sure she was acting as a journalist here--even within her very warped standards of what a journalist should do?

There's the initial problem that she didn't publish a story out of this. That, of course, shouldn't be the standard, as not all discussions with sources become stories. But at least it would have made the point clear.

But I'm not sure she's even claimed this was a story for her. Until she does that, she seems to be claiming ALL conversations one has with someone who sometimes practices journalism (and sometimes tell military officers to obey her--rather than their officers) are protected.

So let's consider another question. Based on Libby's and Pincus' public statements (that Libby cleared Pincus to describe the content of their conversation and that Pincus was asked whether HE told Libby about Plame), as well as allegations from Cooper's note that support the argument a journalist did some of the original leaking, it seems like we should be able to ask journalists if they were in fact working on a story or if they were participating in an orchestrated leak. Would you support questioning Miller to verify that she was in fact working on a story? You could ask her to say, for example, "Well, I found out from one source that Plame was covert and I asked another source whether he knew that and if so whether he had any comment." Until she's willing to answer questions like that, how do we know she was even acting as a journalist? In other words, would you support a system that at least verified whether the journalist was properly claiming privilege, or should instead be claiming the Fifth?

i dunno...personally i was amused by jay's declaration that all journalists snub Novak. i kind of like it actually, but its not like I or even Jay will be the ones doing it. for years he has argued for principles in the journalistic profession, that they owe us the public their loyalties.

on a side note. it has been interesting to track the intellectual arguments about this case. there are way too many unknowns to have a coherent discussion. lots of if then statements.


Good point about the intellectual arguments. And they're all happening against the background of the FEC hearings on blogging and politics, on presidential-pay-for-pundits, and so forth. Which goes to show that the argument is really taking place on a larger, shifting foundation.


i have repeatedly agreed with juls. i really want to see this play out more.

I haven't advocated new legislation on this issue, nor have I advocated the abolition of any existing press freedoms. I merely insist that if these freedoms are to be based in the First Amendment that they attach as intended to the people and not to the government.

You can't chill government speech, as many of you probably know from having tried and failed.

We all understand the situation in which a government employee comes to a reporter with information, the release of which would be criminal, but which is essential to the production of a well-researched and truthful report of government corruption. But how many of us would be equally comfortable in having a government source come to us, insisting on anonymity, with medical information showing that a leading critic of the administration the source serves is taking prescription anti-depressants? Or to borrow the flip side of a frequent objection to my position, the Pentagon Papers: suppose Woodward and Bernstein were hiding the identities of those who broke into Ellsberg's psychiatrist's office, but had run with the story that he was not to be trusted because he was in therapy? Had the facts of that break-in been concealed, Ellsberg's trial for the leak of the Pentagon Papers would have gone forward, and he may well have been convicted.

More to my point, however, is this: How might we react when FOIA requests begin to be routinely denied by government officials asserting Fourth Amendment protection?

Ridiculous, right? Why? Because the protections of the Bill of Rights don't run to the government. Using a cut-out to stand in its place and attaching the rights to her doesn't cure this deficiency.

growing up with Jay around i learned to appreciate the finer points of recreational arguing. the cool thing about doing it on the web is that powerful people actually pay attention and it can affect change.

part of why it is great to see Jay enjoying blogging so much was for so many years hearing him talk about journalists needing to have a dialogue with the public, hosting forums etc. we have a new medium for that to occur and it is as close to democratic as we can get. and hell, we dont even really need the journalists.

Which gets me to my next question, Meteor Blades. Suppose a case was launched against the Department of Education for violating prohibitions against using propaganda with American citizens. Should Armstrong Williams be required to testify about the arrangement he had with the DOE, including a description of how the arrangement first came about?

Kagro X and Emptywheel raise interesting questions. In answer to an earlier wuestion, it is my understanding that when you go before a grand jury, once you get beyond your name and address, you may not pick and choose what to answer. You can take the 5th, but once you start answering, you have to continue. I suppose Miller invoked her privilege the same way. You may be saying that a journalist may be held in contempt for not answering Q.A but not for not answering Q.B.

On Kagro's points, the gov't can (and does) routinely censor the speech of its employees when they are acting within their scope of their employment, and it may curtail their political speech regardless(Hatch Act). We (state employees) were told we had no expectation of privacy in our desks or computers. I'm sure there are other examples.

I've tried, but I can't really see how the Armstrong Williams situation applies. He wouldn't be concealing a source or information, he would be concealing a source of income.

As I've said all along, I'm not an absolutist about this. And I'm happy to say yes yes no yes no no to the next half-dozen examples people hold up for perusal. Jay, juls, Seymour Hersh, Michael Smith and Bob Woodward-1971 would maybe answer no yes no no yes no to the same examples. And Alberto Gonzales, David Horowitz and Bob Woodward-2005 might reply no no no yes no no.

If there can be, as I think there are, so many different points of view about what should be covered by "journalistic privilege" - the broad sense of journalism that emptywheel means - then getting specific legislation which actually provides a uniform nationwide shield for people who practice journalism isn't going to be easy. On the other hand, without such legislation, I think the slippery-slope argument can't be gainsaid, even though a host of people have done so since the DC Circuit panel ruled in January. Much as it galls me to say it, and much as others may disagree, Judith Miller's stance in this matter is the correct one absent a federal shield that spells out protections in detail.

MB, you say "In the past, I've personally gotten tips and detailed information as well as documents from government employees" -- was it illegal for them to give you those documents?

I don't know much about whistleblower protections, but from here it appears that they mostly protect against retribution by the employer ("Generally, the employee protection provisions listed above prohibit an "employer" ... from discharging or otherwise discriminating against any employee ...because the employee engaged in ... (1) initiating a proceeding... (2) testifying in any such proceeding; (3) assisting or participating in any such proceeding ... or (4) complaining about a violation."

Are there protections from criminal prosectuion for whistleblowers who violate the law by releasing information? If not, should there be?

And if there shouldn't be, then why shouldn't the person they released it to be called to testify against them?

Armstrong Williams was my last whatif. But the reason I raise him is because 1) he is in a position where we now know he was not carrying out a journalistic function and 2) where for him to refuse to answer who set him up as a paid pundit would be to reveal a source, if source is as widely defined as it seems to be for Judy Miller (that is, any conversation that may or may not be part of conducting "journalism").

To me, JM is quite likely exactly analgous (absent, perhaps, the money): no longer carrying out a journalistic function, and protecting her sponsor in the guise of protecting a source.

emptypockets, whistleblower laws - which protect public-spirited citizens in theory, but not so well in practice - weren't on the books when I received the information I got. I haven't worked as a reporter since 1987.

I'll cite an example from when I did. A (now-dead) government employee passed along a copy of a classified study and accompanying memoranda regarding cancer studies of workers at the Rocky Flats Nuclear Weapons plant. This was a crime. What the documents showed - and I published - was that government officials and Rockwell International bosses were saying publicly that machinists at the plant actually had fewer cancers than a control sample of the general population. What was not said publicly, but the documents leaked to me showed, was that brain cancers and testicular cancers were a couple of magnitudes higher than in the general population.

The law says the leaker should have been punished, and if I had done what some are suggesting (at other web sites), I would have turned the leaker into the authorities.

My view is that whistleblowers SHOULD be protected; but when you get into the arena of classified documents, it gets pretty dicey. Giving up classified documents - and, in many people's minds, publishing material from them - amounts to treason, per se. And I should never had done it, and certainly not been protected against giving up my source. (That source, by the way, had an unrelated gripe against a boss, so the leak was motivated as much by that as any motive to give me data for the "public good.")

Based on the comments at this thread and earlier ones, I am pretty sure that my colleagues here who disagree with me about Miller would grant that I did the right thing in the cancer case and would even praise my willingness to go to jail rather than speak up. All I am trying to point out - unpersuasively, I guess - is that hard-and-fast delineations regarding concealing sources are not easy to make. Limiting shield laws to unclassified data, or real "whistleblowers," et cetera, may seem like a reasonable approach, but every investigative journalist I know - including those who despise Judith Miller - will tell you that the real world is filled with major exceptions to such approaches.

MB, thanks for specific example. Very helpful to have a case study in hand to think about, especially since (as said above) the case under discussion has many unknowns.

Anyway I appreciate the example and I will think more about it on my own, but if I may give a first naive impression:

I'd like to see two new laws in this area. One that makes it illegal for government workers acting in official capacity to knowingly misstate the contents of government reports (this is just good practice, it seems to me, and I've mentioned this before in the context of the 'edited' global warming studies). And a second that grants some form of legal immunity to whistleblowers who expose their colleagues for misstating the contents of reports.

So, in your cancer case, those who said everything was peachy would be prosecuted while your source would be exempt. Possibly someone can contrive a scenario where these two laws break down, but that could be said of any system and these have the advantage of intuitively feeling just (at least to me).

I doubt anyone would say you did the wrong thing, MB. But a closer question, and a closer analogy, would be whether we'd say the same thing if you had also received a leak from the Defense Department, claiming that your source's grudge was political, that the report itself was slanted to reflect the leaker's ideology, and that the DOD knew this because this second source had personally authorized the use of a private detective to secretly tap your first source's phone, and later infiltrate his local environmental activist group, which they claimed was loaded with communist sympathizers.

Now, the grand jury investigating the illegal wiretapping wants to know who your second source is. Do you tell?

Better question, perhaps: would you have agreed to grant the second source anonymity to get that story?

Well, Kagro, I probably would have said OK to the second source just on the off-chance I could confirm that the government had illegally tapped a phone and infiltrated a group (although infiltrating might not be illegal) and I could expose that.

But since hypotheticals are all the rage, let's imagine that somebody high in the government exposes a previously undercover CIA agent in the document-forging division who the leaker knows generated the fake Niger memorandum of agreement with Iraq on yellowcake. The purpose would, of course, be whistleblowing, not disinformation, but the covert identities law violated would be the same one that Rove (or whoever) has been accused of violating. Jail for the journalist who refuses to tell her source?

First response first: Now that you've exposed the government wiretapping and infiltration, what happens? Nothing, if there's no prosecution. And without your testimony, whom do they prosecute?

Second: You know that I only take these cases outside of whistleblower protections when an anonymous government source "leaks" information that inures to the political benefit of the administration that source serves. So I'm the wrong person to ask on that score. I find no backward first amendment problem here -- it's the government under attack, not its critics.

I have found this a fascinating set of exchanges among a group of bloggers whom I greatly respect.

So let me ask a question. When someone functions as a commentator, are they still functioning as a journalist, reporting? Miller has never claimed to be functioning as a commentator, and thus we should reasonably be able to expect that what she offers fully meets journalistic standards as to checking the sources, seeing what if any contary information may beout there, not merely functioning as a shill or mouthpiece for one side of a dispute.

To me it would be okay for Novak to say it is not his job to do more than report what the government - or any other entity he choose to front - wishes put out, PROVIDED HE IDENTIFY THAT SUCH IS WHAT HE IS DOING - which whether paid or not, Armstrong Williams failed to do.

There are people who function both as reporters and commentators -- David Broder comes to mind. Whatever criticisms you may offer of him, and I can think of several, it seems to me that he normally does a pretty good job of keeping the roles separate.

But if as a commentator one is not really functioning as a reporter with the concomitant standards, should shield laws apply?

I don't have a hard and fast answer on this. I am searching for a solution to the Judith Miller problem, to be sure. I do not have the journalistic experience of MB (nor do I write near as well, but that's a separate problem). I have had op eds and letters to the editor and brief pieces in things like the Post "Free for All" on Saturdays (whatever the real name is), but none of that is strictly speaking reporting. As close as I have come to reporting has been in my blogging. I would think the pieces I did at dKos on the event with Sandra Day O;Connor and on Blogging Nick Lampson contained reportorial elements, but they also included my own analysis. Would that place me in the category of a Novak, who claims to do sonme reporting even as he is offering opinion in which seems to me primarily and opinion piece? Is what he does different than, say, a Derrick Jackson or a Molly Ivins? I think it is -- they may make a reader aware of certain facts, but they are not claiming to be functioning as news gatherers.

There is no doubt a need for First Amendment Amendment protection for those who opine, but it seems to me that those who perform that role are capable of doing it quite effectively without the need for the protection of a shield law, whereas those whose primary function is the gathering of news absolutely need such protection.

It would be my contention that Miller was not truly functioning in a a reportorial capacity, nor has she been during much of the past 4 years, and thus may well have forfeited the rights at accrue to one functioning in such a capacity.

That is my tentative position right now. I would truly be interested in the response of you thoughtful bloggers.

Apologies for typose -- did it in the comments box, and am also quite short of time.


I was thinking about the case of commentators when I was writing this. And much as I despise Novak, I think what he did was more acceptable than Miller. Because Miller has been, pretty clearly, making the case for a limited perspective, for quite some time. Whereas everyone knows Novak is a mouthpiece. And for that matter, he's ornery enough to print something that presumably pisses off old Karl from time to time. And frankly, I think he's got better sourcing. Miller--she's got her Chalabi gravy train, and whoever Rummy throws her way. I'm not really happy about that conclusion. But there it is.

thanks for the response

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