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February 25, 2005


The fundmental problem here, as I see it, is that the leak isn't.just related to the crime being investigated - here, the leak *is* the crime. When the act of leaking an undercover agent's cover is the crime in question, source confidentiality can't be afforded the same protections as in the usual course of action - doing so would essentially nullify the law. And as the families of the hundreds of CIA clandestine agents remembered at the powerful memorial in Langley will tell you, that cannot be allowed.

The fundmental problem here, as I see it, is that the leak isn't.just related to the crime being investigated - here, the leak *is* the crime.

That's certainly true, too. And it's what motivated me to think about whether there was any exception, and then a broader exception, to traditional source protection privileges -- if such can even be said to exist.

So would it be fair to put you down for a separate concurrence?

Free Press? Or Free Pass? Some cases are paradoxical, and some are not clear-cut.

Not sure where I come down on this one. Guckert? Sure, investigate him as well as Novak, Miller, et al.

How should journalists, prosecutors and the courts play their parts in the drama? That's not clear to me.

Does the First protect the State's ability to manage news? Doesn't seem right. Can Solomon divide the baby so that only Good is served? Doesn't seem likely.

Should the exposure of evil machinations trump privacy interests? Not always.

Who's side am I on? I don't know ... but before long I'll revisit some of these topics, with some of the shoes arranged on different feet, in re the McDermott case.

Can Solomon divide the baby so that only Good is served? Doesn't seem likely.

The beauty of the common law tradition is that you always eventually get a second bite at the apple, or put another way, another cut at the baby, until he's shaved thin. Not wholly unlike a carpaccio.

We need to place this G?G problem directly on the Republikkkens doorstep. Its their problem as much as anyones. How could they allow prostitution , propaganda, and pornography in their White House when they were in complete control of government? How can a party of supposed strong values allow Prostitution and pornography in their party to go unanswered and unpunished while they had the reigns of complete leadership in their grasp? The Republicans MUST ANSWER now or in 2008.

So would it be fair to put you down for a separate concurrence?

Fair enough. I should clarify, though -- I see a difference between the privilege invoked by those on the receiving end of an illegal leak (i.e, the reporters who heard about Plame directly from Scooter, and thus were the only witnesses to an illegal act), and those who heard about the leak from other, non-governmental sources.

NO PRIVILEGE IS ABSOLUTE -- IANAL, so perhaps one of you may correct me on this. Let's take Attorney-Client privilege. Because the attorney is an officer of a Court, s/he is not allowed to put a defendant or witness on the stand that s/he knows will commit perjury.

As a teacher, I am offered no specific privilege, and in fact am required to report incidents of suspected child abuse -- physical, sexual and emotional.

The Doctor-patient privilege is any many cases limited by the requirement of the doctor to report incidents of gunshot wound, for one example.

The extension of the privilege is many cases balanced by the the state's need to maintain public saftey -- in this sense one could argue that Holmes' "clear and present danger" test in the Schenck case, which established a clear basis for limiting First Amendment expression rights might serve as a starting point for a discussion of press privilege.

I don't have as yet a clear position on this. For example, even if you grant that there is a privilege to the reporter who speaks to the source, would that privilege extend to an editor who has never spoken to the source, but who knows who the source is because it as a requirement for the story to be published? Think how this might have applied had the Justice Dpartment under Nixon gone after Woodward and Bernstein -- would Ben Bradley have been required to give up the identity of Deep Throat?

In a time when we have an administration that wishes to limit our rights in order to cover its tracks and its future plans, I of course have a strong prediliction to come down on the maximum protection of rights. Which is why I think the issue of press confidentiality has to be discussed in the wider context of all our of rights. Thanks for prompting the discussion.

Here the First Amendment is a red herring. The First Amendment protects the right of persons or entities to publish information. What Judith Miller and the rest of the reporters want is not to have to reveal the sources of that information. The First Amendment does not protect the right of reporters to keep information about their sources from court process. This is an act separate from the publication of that information and is not protected. Nor should it be.

Note also that there is no federal "reporters privilege." Indeed, only a handful of states recognize such a privilge and it is generally not accepted in the law.

I'm not arguing that there is a privilege. I am responding to the reality of the press arguing that there should be. That is why so many have rallied behind Cooper and Miller. There are state shield laws of varying degrees of protection.

Current status of Federal jurisprudence seems to be mixed, with different opinions issued in differrent circuits, which is normally the recipe for the Supreme CXourt to get involved fairly quickly in order to avoid having conflicting rules in different circuits. Thus currently it is not absolutely clear that reporters CAN"T keep information about sources protected from the Court process.

As I understand current federal procedure, at least as far as the rules from DOJ established before this administration, there is a practical protection, in that a US Attorney will not seek to compel a reporter to give up that information unless the US Attorney can show that there is no other way of obtaining that information, that all other methods have been exhausted. Is that not the case? And if so, does not that function at least partially as a privilege?

I don't think this discussion can be in isolation from other issues of restrictions of rights.

It's hard to argue outright that there is a privilege in this case -- teacherken is right, there's a fairly serious split, not just among the circuits, but even within the DC Circuit. In the case of the Plame investigation, each of the three judges on the DC Circuit panel came up with a different rationale for denying protection. Essentially, one argued that there was no privilege (it's not really part of the First Amendment); one argued that if there is a privilege it wouldn't matter because the circumstances of the case overcome the privilege; and one argued that it at least matters that there is a privilege at common law (not a Constitutional one), but that it was overcome nonetheless.

There seems to be fairly good grounds for carving out an exception when the privilege (if it exists) serves to shield criminal activity. I just happen to think it should be extended to at least require a balancing test when the source is a government official acting in his capacity as a government official.

The government shouldn't be able to level attacks and accusations against citizens under the protection of anonymity. The government has every opportunity to disseminate legitimate information that would tend to disprove its critics. It needs no special protection to do so, and it can normally stay well within its rights when it does so -- which is also to say that it is typically immune from prosecution when it does so.

It is precisely because this is not the case with individuals or press organizations that they are afforded special privileges. The weight that the government can bring down on those who disseminate information that is truthful but politically damaging is enormous. The damage that can be done by truthful but politically harmful information being disseminated by citizens may also be enormous, but it is political damage (as distinct from damage to national security), and as such is well within the contemplation of the sorts of damage citizens ought to be able to inflict on their government. When the government seeks to do damage to citizens or citizen organizations, it is rightly held to a higher standard, as in criminal proceedings.

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