Wherein emptywheel Disagrees with PatFitz

by emptywheel

As some of you might remember way back, I first got sucked into the Plame investigation when Judy Miller was heading to jail. I found her appeal to a non-existent reporter's privilege a farce, given that her relationship with the Bush Administration had long dropped any pretense of journalism.

So it may surprise you that I think Patrick Fitzgerald uses the wrong approach in his editorial lobbying against the shield law before Congress. Mind you, I don't think his intent is wrong--I find the shield law flawed on several counts. But his argument doesn't admit the problematic context in which leaks currently exist.

For example, Fitzgerald is speaking exclusively as a prosecutor when he complains about the way the shield law would hamper any investigation of national security leaks. I take his representation at his word--I trust the shield law would make it nearly impossible to investigate the kinds of leaks (through Judy to the Islamic charities, through Judy--Cheney hoped--to out Plame) Fitzgerald has been investigating. Not surprisingly (in this he is as consistent as always), he accepts that leaks endanger national security, citing Robb Silberman and 9/11 Commission.

Yet before we get to the point where we're basing arguments on a shield law, we need to accept that  over-classification, willful Administration leaks, and refusal to submit to the oversight of citizens is just as serious a danger to our country as leaks about warrantless wiretapping. That is, when we've got a government that has refused to submit to the transparency on which our government relies; it has made the entire classification system into one big bureaucratic joke, a tool of the abuse of power. Which doesn't mean you shouldn't investigate leaks (on the contrary, it'd be nice to actually bust these guys for breaking their own rules). But it doesn't mitigate the need to provide some protection for real journalism. There are people who could be prosecuted under the Espionage Act who we, as a society, would prefer avoid any prosecution. While many journalists have proved remarkably unable to judge which are the good leaks and bad leaks, the judiciary should not be in a position to determine which leaks serve the interests of the citizen and which do not (after all the judiciary should administer the law equally, not determining which of Dana Priest's and Eric Lichtblau's sources were good or bad leakers). So perhaps the thing to do is first amend the Espionage Act, to eliminate the danger that important leaks will be punished, before we rest easy with the current system.

Then Fitzgerald talks about the several kinds of groups that might gain protection under the shield.

¿ "Charity" groups that raised money through Internet postings, purportedly for widows and orphans, but that actually diverted the funds to groups affiliated with al-Qaeda.

¿ An Iraqi spy who had a cover job as a journalist.

¿ A violent street gang that pirated a religious radio station to broadcast messages to gang members.

¿ Child pornographers who shared information over the Internet.

Again, I take him at his word, here. But I'd have preferred him to get to the real core of the issue. These are extreme examples of people who should not be shielded.

But such an approach ducks the real issue--and the category that would cover Fitzgerald's extreme examples as well as the more prosaic, and perhaps equally dangerous, ones. Though I sure get the feeling he had it in mind while he wrote this, Fitzgerald never describes the danger of an Administration using someone who is perceived to be a "real" journalist simply to launder leaks that reinforce power without serving the interests of the state. Fitzgerald doesn't describe Dick Cheney ordering Libby to leak Plame's identity through Judy; he doesn't describe the attempt to scapegoat Wen Ho Lee for security lapses, and so on. And all of these leaks would be protected by the shield law, as well.

Perhaps Fitzgerald simply doesn't want to rehash the Libby trial; perhaps he wants to scaremonger about terrorism to make his point more easily (I understand he's been in this terror prosecution racket as long as anyone, but doing so now really plays to the base aspects of our country's psyche). Fair enough. But there is a better way to describe this problem than using the extreme cases and dodging the underlying issues: as many people are increasingly doing, talk affirmatively about journalism rather than journalist.

After all, Islamic charities, spies working under journalistic cover, and shills working under journalistic cover would all fail a close test of whether they were engaging in journalism--even if all their colleagues called them journalists. A better way of addressing the problems with the shield law--indeed, with any law that tries to define journalism--is with a robust discussion of what characteristics of journalism we're really interested in protecting.

All that said, I do have to applaud Fitzgerald's best dig--at the hypocrisy of journalists who want laws to protect them even while they refuse to recognize the rule of law.

A threshold question lawmakers should ask is whether reporters will obey the law if it is enacted. They should ask because the Reporters Committee for Freedom of the Press calls for a shield law while urging journalists to defy the law when a court upholds a subpoena for source information. Any shield bill should require that a person seeking its protection first provide the subpoenaed information under seal to the court, to be released only if the court orders the information disclosed.

(And for the record, no, I did not manage to get in a brawl with Lucy Dalglish at the conference last weekend; if anything, I set up Reggie to get in a brawl.) As Norman Pearlstine pointed out, the same journalists who insist even the President should abide by the rule of law--or at least the judgment of SCOTUS--at the same time invoke the privilege to ignore what SCOTUS judges in their own cases. So long as journalists continue to do this--and commit similar hypocritical abuses of the First Amendment--any privilege will serve first and foremost to reinforce the position of an increasingly lazy elite corps of cocktail weenie tasters.

Like I said, in the end my position is not that different from Fitzgerald's. I think we currently have a balance between the rule of law and the rule of the First Amendment. But my reasoning is completely different. Unlike Fitzgerald, I think I'd say publicly that both those sides--the law, the press--are terribly flawed institutions right now. As institutions (as distinct from, say, Fitzgerald personally, or Dana Priest personally), neither has demonstrated the responsibility needed to uphold their half of that balance.

So given that reality, we'd be better served trying to restore the responsibility of those institutions before we tip that balance in either direction, either toward law or toward the press.

Comments

[bmaz]

I think that it is important to note that states with shield laws have dealt with these issues and/or analogous ones for a very long time and, while they have not been perfect, nor perfectly even, they have been very workable and acceptable on the whole. Terrorism is crime by another name. The fact that there was finally a big attack in the US did not "change everything"; it merely exhibited that the inevitable had arrived. Our same laws, morals and ideals that got us this far still work; they just need to be rationally and calmly applied, including shield laws which have been around forever. If intelligence is applied, intelligence will result. The results will not be, and cannot be, perfect every time; but it never is in human endeavors. One question I have is what are the provisions or anticipated application to bloggers and where is the cutoff threshold?

[oldtree]

And only one person was charged? no reporters were charged for their involvement in obstruction either? no follow up indictments for anyone since scooter. USA appointed by Bush. Has seen first hand how the misuse of classification has prevented him from even bringing charges against several other members of the OVP, EXU, CIA et al, that as a result of charges might have turned federal evidence. Evidence which could have aided in positive identification of targets, due to original investigative work by journalists. Fitzgerald didn't bring the people into court that informed journalists and potentially broke laws. Isn't that odd?
We can't have it both ways. We would need real laws and agencies to enforce them. We lack both.

[radiofreewill]

A Shield Law that protects the best interests of US, would have to contemplate bad-actor Politicians (leakers) and/or bad-actor Journalists (stenographers) - otherwise, as the Plame Leak proved, the protections are for the benefit of the Criminals.

One of the reasons a profession is called a profession is because it adheres to a code of ethical behavior - both Politics and Journalism claim to be professions, which makes them each responsible for enforcing their respective Codes of Ethics.

However, despite claiming to be a profession, our Politicians in Congress haven't had any meaningful Ethics Committee meetings in over six years - they aren't actually policing themselves as they meet for two-year binges at the Food Trough of Our Taxes.

Judy Miller was instrumental in Lying the Country to War in the guise of a Pulitzer Prize-winning Reporter for one of the most prestigious newspapers in the World, the New York Times.

When confronted by the FBI about the truth of her activities with Libby, Judy went nobly to Jail 'to protect her source.' After being forced to reveal her notes, she still lied to the FBI and continued to withold info on her "leak-receiving" meetings with Libby.

Eventually, all that she tried to hide came out and clearly revealed that she was told by Libby that Valerie worked at the CIA - all ordered by Cheney and authorized by Bush - and before Novak spoke to Armitage.

Judy retired from the New York Times. No Journalistic Ethical Review. No professional commentary or colliquy on [Nobly going to Jail to 'protect my source'] and [receiving 'leaked' classified information from Libby to smear Cheney's and Bush's political enemy, the Wilsons] - the same one-way stenography MO that she followed to Scare US into War.

With character-voids like Bush/Cheney/Libby and Miller/NYT, how would a Shield Law help US?

[Mary]

I don't take him at his word and I think it is not a good idea to do so.

I thought about a detailed response, but don't have the time to dig up links right now, but let's take that 'dig.'

A threshold question lawmakers should ask is whether reporters will obey the law if it is enacted.

This from a representative of a Dept of Justice that is refusing to turn over how many documents and records, despite laws regarding Congressional subpeonas? With the thorough corruption that IS the Dept of Justice, he has the nerve to pontificate and pout that reporters may not obey the law, when LAWYERS for the Justice Dept are run amok with partisan prosecutions, refusals to comply with laws regarding Congressional investigations and partisan coverups from the mundane of known Presidential Records Act violations to the hopefully less mundatne knowledge of and participation in rendition to torture without evidence?

He asks those questions on the same day that it becomes clear that DOJ has lied and covered up, over and over, the status of torture it has solicited? This isn't pot meet kettle, it's pot meet universal black hole of nothingness, void of oblivision, abyss of immorality. He asks those questions in light of a DOJ that has refused to allow or demand an ethics investigation of Alberto Gonzales and in light of a DOJ whose primary spokesperson before the Sup Ct, Paul Clement, has been recently mentioned prominently in a law suit, remembering the recititations made on behalf of the Dept, to the Court, which - Abu Ghraib or not - where untrue on any number of fronts including those set forth in the Arar lawsuit pending at the time of those representations?

Whatever.

They should ask because the Reporters Committee for Freedom of the Press calls for a shield law while urging journalists to defy the law when a court upholds a subpoena for source information.

Good for the Reportrs Committee for Freedom of the Press.

Any shield bill should require that a person seeking its protection first provide the subpoenaed information under seal to the court, to be released only if the court orders the information disclosed.

ROFL - except not. How despicable to trot that out when DOJ has relied, over and over during the last 6 years on the ability to file, willy nilly, invocations of "state secrets" to prevent courts from ever reviewing the veracity of evidence of crimes committed by or within the Dept or by the Executive Branch principals. When a partisan, corrupt DOJ that has been engaging in voter suppression, torture solicitation, misrepresenations to the court, etc. goes to the courts, over and over, and says, - it doesn't matter whether we are are committing crimes or not, bc "it's a secret" - he wants to get preachy about reporters having to give everything up first, and presumably truthfully (although with this DOJ that standard of truthfulness is only imposed on others -never on themselves) ---

sorry, but I think it was a very unworthy, poorly reasoned and factually farcical effort.

[bmaz]

Hey DOJ addicts, my TeeVee tells me that Jack Goldsmith is on Jon Stewert Daily Show tonight. Mary, I can only imagine what you make of that....

[Jodi]

We need a "Secrecy Act."

[bmaz]

An anti-bolding act would be much more useful here. Perhaps if you just stayed "secret", it would accomplish the same thing and would be cheered by one and all.

[bmaz]

OK Mary, you will love this edition of TV Critics Corner by bmaz. Goldsmith is a worthless little pudgy Pillsbury Doughboy weasel. He states that "all the people in the administration were good guys" the pressures, you know, just led to a few bad decisions. Thats all. Stewert asked about the group that threatened to resign, and boy did the smarmy twit puff up and act like he was the cat's meow that saved democracy. Played down the hospital visit and left the impression that the whole rogue's gallery were just patriots doing their best under "the threat of terrorism". What a load of BS. Screw Goldsmith. Stewart was curiously non-confrontational for the most part.

[prostratedragon]

This is a whole nest of problems in what economists call asymmetric information, or situations where one person or side can conceal vital information from others who have to deal with them. They're nasty problems that very often don't have definitive solutions (Buy or do x when its price is y or less, that kind of thing).

Here we have the public as the prinicpals whose will is supposed to be the ultimate goals (now, now). The public has bilateral relationships with groups of agents —journalists or the press, politicians, and just for fun, courts. The agents execute the will of the principals, for which purpose they get certain tools and prerogatives.

The trouble basically is that the principals can't tell which people are true agents, and which just want to use the cool stuff for their own purposes. And the seemingly simple fact that there is no way in hell you can pry out of someone in advance which kind of agent she is, that makes me skeptical of a shield law (protecting foolish and knavish journalists along with the rest), but also unwilling to leave the press to the possibility of fools and knaves disguised as public servants.

One way in which professional codes with in-group surveillance bodies can help in these situations is by giving agenst a knowledgeable audience that's less likely to be fooled. I have the impression that such mechanisms work fairly well over the long run in many professions, like law. On the other hand, our Congressional politicians seem to be intent on showing how it can bring us to the edge of utter disaster when self-enforcement breaks down. (But if we survive this period as a nation, I predict that we'll be too terrified for a long time to neglect our institutions this badly.)

But how in any case can the press self-enforce? How suss out a Judy Miller, preferably before as much damage as was done? How define in a way that could be actionable by an Honor Board what she apparently did as conduit, and her questionable representation as a journalist, in distinction to the actual creation of the falsehoods that she spread? What about legalities that would spring up, including the possibility that the Honor Board defend its action or seek backing? (I am assuming here that, the Speaker of the House to the contrary notwithstanding, it would be necessary to grant some actual enforcement power to the Honor Board, which would open it up to recourse of the judged.)

It's not that I think there are no answers to such questions —at this hour, I'm sure I have no idea— but as an alternative to a law that would, not might, enable all that we've seen and perhaps worse, I suspect that some formalized journalistic honor code is the thing that might end up being created. And of course, that leads to issues that get very close to freedom of speech and how it is implemented in society.

Btw, in P&A problems, an alternative to getting the agent to self-police (and then using the imprimature of the guild as some improvement in one's information) is for the principal —us, the press "consumers"— to directly design a compensation scheme so fabulous that it would screen out the heralds, cut-outs, etc. by failing to meet their desiderata, whatever they are, but would be satisfactory to the honest and high-quality remnant.

In a less sophisticated time, the incentive scheme known as underpaying accomplished this fairly well, but with various revolving doors and the like I suspect we have innovated ourselves out of that possibility.

[Simplify]

Is there not a way to construct a shield law such that if the reported information is critical of the government, it's covered, but if it supports the government's position, it's not?

I guess that's another way of saying that no journalist should quote an anonymous source from an organization saying things that favor the organization, but ah well.

Also, anyone who leaks classified information that is both true and indicative of illegal government activity should not be prosecutable.

[emptywheel]

With all due respect, Mary, the hypocrisy and ignorance of organizations like the RCF that make me disinclined to support a shield law. If I have to abide by the law, then damnit, Tim Russert ought to have to. Judy Miller ought to have to. Otherwise, journalists become nothing more (and have, in many cases, become nothing more) than protected cut outs available to anyone to launder information and just as often, disinformation. That does not serve the interests of society in the least.

My point here was that--though this was written from the position of a prosecutor employed by a corrupt DOJ, sane people might oppose the shield law as written because it's not going to get us better journalism, and as a result isn't going to do a damn thing to keep this govt in check. And may well be used to accrue more power for those in this government who have already abused it.

Simplify,

I like that last bit: tying punishment to whether it is true and whether it should have been disclosed.

[emptywheel]

Mary

And to add to that. If you're endorsing that journalists just blow off the law in any case, then why even pass a law? That's the whole point, really. Either you pass a law and live with it, or you don't pass the law.

[Jane Savoca]

It is really difficult to guage what this legislation is all about from the "take it to the extreme" positions of an op-ed. But my radar was up that the legislation was flawed because Ted Olson was defending it. Since when is Olson a champion for the free press? Sorry I guess the answer is since Time started paying his retainer.

I agree (reluctantly b/c I still love Fitz) with EW that he didn't argue this the best possible way. In addition to EW's brilliant "its about journalism" not journalists--the courts are concerned with the constitutionality of the whole thing. And the first amendment does not provide journalists with an absolute privilege. Fitz could have taken that approach, and their are cases that back that up, probably cited in some of the rulings he got. But he is a prosecutor, not a constitutional law scholar.

[joejoejoe]

If there was something like Miranda rights between journalists and whistleblowers ('you have the right to anonymity'... etc.) and the shield only applied to people who were willing to affirm that what they were saying was true to the best of their knowledge, and that the information could only be shared under seal if subpoened , I'd support that kind of shield.

I think a national shield law as journalism is practiced today would make disinformation the rule of the day and people would be left unprotected from disinformation through cutouts and with less information to make decisions. Since I believe the shield law would generate more of a chilling effect on the truth than any fear of prosecution I'm not in favor of it at the moment.

I've seen no evidence that the behavior of people like Viveca Novak, tittering away protected information over drinks to a defense lawyer working on the case, is anything other that par for the course among a plurality of her peers. A doctor who violates privacy laws with a patient is subject to some kind of sanction. Journalists say the only sanction should be a hit to their reputation if they spill the beans. I can't see supporting more protections until the press stops wanting to have it both ways.

I'm talking out of my arse pretty much so I hope this makes sense. Sorry for the ramble.

[&y]

I am sorry about the off-topic. Anybody remember where that thread was oh-so-long-ago in which a bunch of Plameologists discussed who would play whom in the movie?

"Valerie Plame, 44, her husband, former Ambassador Joseph Wilson, 57, and their 7-year-old twins moved to a large hilltop home in Santa Fe earlier this year and have been consulting with screenwriters on a film about their life."

Or was that at FDL? (Come to think of it, the discussion probably happened in a lot of places. But there's one that I had in mind.)

[William Ockham]

I'm in the odd (at least for me) of agreeing with Fitzgerald on this one. The fundamental flaw with shield laws is that they recognize a non-existent "class". The Constitution guarantees freedom of the press for everyone, not journalists. It is inherently wrong to give special privileges to journalists.

[whitewidow]

And for the record, no, I did not manage to get in a brawl with Lucy Dalglish at the conference last weekend;

Boy would I love to see that! I went to high school with Lucy Dalglish, and I never did like her. Petty? Sure, but I'm still enjoying the image of EW kicking her ass. I guess I'll just have to settle for a verbal ass-kicking.

Note to Lucy: Whistleblowers are not equal to propagandists.

[sailmaker]

EW says,
"Yet before we get to the point where we're basing arguments on a shield law, we need to accept that over-classification, willful Administration leaks, and refusal to submit to the oversight of citizens is just as serious a danger to our country as leaks about warrantless wiretapping."

I would add enhance the protections in the Whistleblower Act (which have been gutted in the name of national security).

Fitz says,
"¿ "Charity" groups that raised money through Internet postings, purportedly for widows and orphans, but that actually diverted the funds to groups affiliated with al-Qaeda.

¿ An Iraqi spy who had a cover job as a journalist.

¿ A violent street gang that pirated a religious radio station to broadcast messages to gang members.

¿ Child pornographers who shared information over the Internet."

We already have laws about "charity" groups - they need enforcement, which the Feds have been lax at - chase the money going through Saudi and they are going to find some real problems (I got that from the 9/11 report).

We have got spy laws, FCC laws, and porn laws, enforce them, then start talking about nouveau shields.

[phred]

I think Simplify has the right idea. By protecting leaks that are true and indicative of illegal conduct, then we protect true whistleblowers, while leaving the likes of Miller responsible for their manipulative stenography.

This relates to my complaint about Rockefeller's letter to Cheney tucked away in a safe. He evidently objected to conduct he believed illegal, but couldn't seem to find an avenue to tell anyone so such conduct could be stopped. Clearly the classification system is being abused, when it is used to conceal unlawful behavior. We MUST have a legal avenue for leakers to reveal such information.

[emptywheel]

whitewidow

Oh, do tell. Dalglish swooped into the conference, did her panel (pretty much telling scholars from the rest of the world we don't have big First Amendment freedoms), then left. The Europeans pointed out that people could be held in contempt in Europe for hurting a defendant's presumption of innocence. I pointed out that the Wen Ho Lee settlement and the probable Hatfil settlement end up de facto doing the same thing. I don't think she got it.

[Shit Stain Remover]

We need a "Secrecy Act."
Posted by: Jodi | October 05, 2007 at 02:22

We need shit stain act. Oops, there you go again.

[William Ockham]

[/aside to bmaz] Stop feeding the trolls at Jay Rosen's place...

[radiofreewill]

As long as we're doing something of a retrospective on insights from the Plame Affair...

- If Bush and Cheney were willing to *anonymously but authoritatively* Smear Wilson, a Political Enemy, using Secrecy and Compartmentalization to convey Classified information about Wilson's wife...

- Then, why wouldn't Bush and Cheney also Use Secrecy and Compartmentalization to hide Other Illegal activities?

For instance,

- telling US and the World in codified language, "We do not torture" because it is "abhorent" - and then creating Secret codified language that not only supercedes and repudiates the liability-protecting, face-saving Public position, but also binds the 'knowers' of the Secret to Not Tell The Congress about it.

- hiding warrantless, full-spectrum electronic surveillance of the Citizenry, from the Citizenry, and its Legislative Representatives - not revealing the Legal Opinions used to justify the Program, not allowing those Legal Opinions to be tested in Court, and providing no auditable record of Use/Misuse - all performed through Bush and Cheney's *personal discretion* in the use of Classification, State Secrets and Compartmentalization.

Isn't one of the most important lessons of the Plame Affair that Fitz showed everyone who cared to watch that Bush and Cheney were willing to stop at nothing to 'get' their Political Enemies? Once Bush and Cheney decided that the Wilson's had to be 'taken out' politically, they hatched a very detailed and sinister plan, whose success was entirely predicated on:

- Hiding behind the Law where it helped them [mis-use of Leaking, classification and compartmentalization]
- Not admitting when they broke the Law [mis-use of Executive Privilege]
- Total Secrecy beyond Judicial Review when they chose to act Outside-the-Law - on the basis of self-drawn, bootstrap Legal Opinions [mis-use of the Public Trust]

Given the above - demonstrated prima facia, so to speak, by the Plame Affair - Does Anyone really think that Bush and Cheney would hesitate to "over-watch" their Political Enemies to avoid getting caught breaking the Law and the Public Trust?

When are we going to admit it? The reason all Americans feel like abused family members is because Criminals are in charge of the Country. This is what the Tyranny of Immoral, Self-Interested "Do As I Say, Not As I Do" Totalitarianism looks like.

[William Ockham]

ew,

Your (and Norman Pearlstine's) point about the hypocrisy of journalists being hypocritical by calling for the President to obey the law while they flout it is completely wrong. The President has a constitutional duty to see that the laws are faithfully executed. That's why we call it the Executive Branch after all. His (or her) responsibility to follow the law is far beyond any other citizen's. You trivialize the depth of Bush's depravity with this statement.

I would argue that the President is the only citizen who doesn't have the option of civil disobedience. I'm completely opposed to shield laws because they let "reporters" off the hook for their moral duty. The right thing to do when you've promised a source anonymity and are called on to testify is to refuse and go to jail. If "reporters" understood that, they wouldn't be so free and easy with the use of anonymous sources.

[bmaz]

I have seen both sides of this question in practice on the state level. The aggressive manner in which prosecutors can go after journalists doing their job is rather appalling and it does chill investigative journalism. I think there ought to be, at a minimum, some type of strong rebuttable presumption. There is no system that will be perfect for all situations; but no other sets of laws work perfectly either. You do the best you can for statutory guidance and depend on courts and due process to sort the rest out; by and large it works pretty well. The issue as I see it is, at least partially, that many, if not most, states have some sort of Shield law from the de minimis balancing of Branzburg v. Hayes, 408 U.S. 665 (1972, to very detailed and very strong protections. There is a whole range of standards; and then there is effectively none, other than the weakest balancing test, for the federal jurisdiction. Point being, there is no uniformity, few important stories today are truly local and with the willy-nilly assertion of "terrorism" and "national security" over everything, there really does need to be a set protection package of some kind. As bad as the field of journalism has been in recent years, it is still a principal, if not the principal, bulwark against the tyranny of the king (George).