David Corn stands the First Amendment on its head.

by Kagro X

The Nation columnist David Corn, in his Feb. 24th article, suggests inter alia, that calls for Plame Affair investigator Patrick Fitzgerald to subpoena Talon News "reporter" James Guckert, a.k.a. "Jeff Gannon," may endanger the media's First Amendment protections. I think he's got it backwards.

Corn jumps into his free press arguments by starting with an examination of the likelihood that Guckert's implication that he had somehow gained access to a State Department Bureau of Intelligence and Research (INR) memo claiming that Valerie Plame was in fact behind her husband, Ambassador Joseph Wilson's, assignment to the yellowcake case. Specifically, the likelihood that his knowledge of the memo could instead have come from reading an earlier-published Wall Street Journal article.

In much the same fashion as Daily Kos diarist Categorically Imperative, Corn compares the wording in the Journal's article to the wording of Guckert's questioning of Wilson in an October 28, 2003 interview:

What is striking is that the language Gannon/Guckert used to describe the memo during his interview with Wilson is nearly identical to the Journal's description. Here's the question Gannon asked Wilson:

An internal government memo prepared by U.S. intelligence personnel details a meeting in early 2002 where your wife, a member of the agency for clandestine service working on Iraqi weapons issues, suggested that you could be sent to investigate the reports. Do you dispute that?

Here's what the Journal had earlier reported:

An internal government memo addresses some of the mysteries at the center of the White House leak investigation and could help investigators in the search for who disclosed the identity of a Central Intelligence Agency operative, according to two people familiar with the memo.

The memo, prepared by U.S. intelligence personnel, details a meeting in early 2002 where CIA officer Valerie Plame and other intelligence officials gathered to brainstorm about how to verify reports that Iraq had sought uranium yellowcake from Niger.

Note the similarities. To ask the question Gannon/Guckert posed to Wilson, he did not need to possess that memo. He only needed to have read the Journal. It's possible he was leaked the same document. But the simpler explanation appears to be he saw it in the Journal.

[There's more below the fold.]

These similarities are very telling to me, and I have in the past agreed with Corn's conclusion that it's very likely that Guckert cribbed his "knowledge" of the alleged memo (which few, if any, have actually claimed to have either seen in its original form or as a true copy) from the Journal. But Corn next takes a turn with which I disagree:

Nevertheless, Gannon/Guckert's critics have called for Fitzgerald to chase after him. Most recently, Representatives Louise Slaughter and John Conyers, two liberal Democrats, have written Fitzgerald and asked him to subpoena the journal Gannon/Guckert kept while he worked at the White House for Talon. (Gannon/Guckert resigned from Talon after the scandal broke.) In their letter, the House members characterize Gannon/Guckert as "a person in the White House briefing room who had access to a memo revealing the [CIA's] operative's name." They note that "Mr. Guckert had access to classified information." This description is misleading. Valerie Wilson's name had been disclosed months earlier--not by this memo. And, as noted above, it is uncertain--perhaps unlikely--that Gannon/Guckert had access to this memo. Still, they have egged on Fitzgerald to subpoena Gannon/Guckert's notes.

Corn here presumes that the theory we share about the likelihood of Guckert's access to that memo, which would be the classified information to which Slaughter and Conyers refer, is established as fact. Surely, however, a much better and more thorough picture of the events leading to Guckert's insinuation could be drawn by allowing Fitzgerald to ask a few questions?

Corn continues:

This would be a terrible move. Fitzgerald is already trying to destroy the ability of reporters to obtain information from confidential sources. He has subpoenaed Matt Cooper of Time magazine and Judith Miller of The New York Times and requested they identify sources. An appeals court recently ordered the pair, who have so far resisted, to cooperate. The case is heading toward the Supreme Court--which is not expected to be kind to the journalists--and Cooper and Miller could end up in jail. Now Slaughter and Conyers want to compound the damage Fitzgerald is doing to journalism by pushing him to subpoena a reporter's notes. Fitzgerald should not be encouraged--especially when the case is weak that Gannon/Guckert had any access to classified information.

Here, I think Corn's analysis is arguably backward. This particular case, as I have written elsewhere, pits the First Amendment against itself, making it easy to lose your place in the argument, as I maintain Corn has done:

Will [the journalists in question] testifying have the effect of making people less likely to leak governmental abuse? Hard to tell directly from this case, since the leak itself was a governmental abuse.

The problem here is that the one who "leaked" governmental abuse was Wilson. The leaks from the sources Miller is protecting sought to chill Wilson's right to leak governmental abuse.

So, how do we answer that one?

For myself, understanding that the Bill of Rights reserved the rights of individuals against state action, I side with the free speech claims of the individuals, and disclaim the government's attempt to attach to itself rights that the First Amendment intentionally removed from its reach and reserved to the people.

So, my take on things is that I agree with Corn that Guckert probably was blowing smoke about that memo, and just cribbed it from the Journal. But when it comes to questions of classified information, you're going to want to be sure, and that's something that a thorough investigation can decide more definitively than can an educated guess. Further, I disagree with his doomsaying about what it means if Fitzgerald subpoenas Guckert, or indeed if he ultimately succeeds in forcing the testimony of Miller and others.

My argument is that the free press protections established in the Constitution were established for the purpose of protecting individuals (i.e., members of the press, and by extension, their sources) against the power of the federal government. But the argument being made by Miller and other journalists under investigation stands that on its head, claiming instead that the government is entitled to invoke free press protections to defend itself against critics.

This is completely backwards. The right to a free press was always meant to afford protections to private citizens, who are at a natural disadvantage vis-a-vis the government when it comes to getting their message out to the public. Not only does the government actually have a built-in advantage in that respect, but it also has a tremendous advantage in its ability to make the expression of dissident viewpoints difficult for private citizens, an advantage that comes from being the government. Private citizens, on the other hand, have no ability to make it difficult for the government to make its voice heard. Consequently, no need for Constitutionally-derived free speech protections for the government.

Journalists certainly must jealously guard the free press protections they enjoy, but in this case, the sources Miller and others are protecting are not private citizens subject to the possible abuse of power by the government, but rather the government itself, seeking to use free press protections to shield itself from exposure in a plot to silence private citizens.

This stands free press protection on its head, and to me (admittedly not a journalist), journalists are better served by agreeing that in a head-to-head contest between a governmental source (acting malevolently on behalf of that government) and a private source (acting in contravention to the government), the private citizen's rights ought to be afforded the greater weight.

Comments

[Trapper John]

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.

[Kagro X]

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?

[RonK, Seattle]

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.

[Kagro X]

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.

[ksec]

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.

[Trapper John]

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.

[teacherken]

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.

[Rob W]

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.

[teacherken]

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.

[Kagro X]

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.