"Information does not yearn to be free"

by emptywheel

I'll start this post with a little warning to the NYT board. When it was revealed that Conrad Black was pillaging his own company for fun money, those directors (notably Richard Perle) who signed off on the pillage were held liable for the pillage. Yeah, I know that media companies are a little different than the Enrons, WorldComs, and Tycos of the world. But the example of Hollinger proves that the board of a publicly held media company is still responsible for the decisions that company makes.

Don't get me wrong. I'm not saying Pinch is pillaging the NYT of its profits (although you could argue he is pillaging the NYT of its most valuable asset, its reputation). But it's looking increasingly like Pinch has gotten himself into a bit of a, um, pinch--one that may actually be a legal pinch. And if the board and the family allow him to do this knowingly, they too will bear some liability.

You see, in an earlier post I described Pinch's difficulties in buying off Judy Miller. Now, as Arianna explains, Pinch has just about given up the buy-off, and now he's searching for some closet (a dignified one, mind you) that he can hide Judy in to appease her while still preventing her from talking.

And, indeed, a Times staffer tells me that talks with Judy have moved from negotiating her severance package to discussing ways to bring her back that would not lead to a newsroom revolt.

And you won’t believe the reason. “The people who think Judy should come back,” my source tells me, “say it’s for the good of the paper. They think it will calm everything down.”

Sure, it's for the good of the paper. Perhaps the Observer explains why a bit more clearly:

And according to one source, Ms. Miller herself has indicated that she would never agree to a gag order.

The only way to keep Judy quiet, it seems, is to keep her on the NYT payroll.

Whatever complicity Pinch is trying to hide, its exposure would apparently give the grey lady a worse black eye than Judy Miller's continuing association with the newspaper would. Which is pretty remarkable, because the rest of the media world is beginning to catch on.

Consider this column from the Bergen County Record (courtesy of Jay Rosen), which pretty much sums up the damage Judy has done to the profession of journalism in general (to say nothing of her damage to the NYT):

WE'VE been had. Like many editorial pages around the nation, we saluted New York Times reporter Judith Miller and cited her courage for going to jail to protect an anonymous source in the investigation of who leaked the name of CIA agent Valerie Plame to the press.

Ms. Miller became a journalistic Joan of Arc in the eyes of many people in our industry. Yes, we knew she had written highly questionable articles about the supposed existence of weapons of mass destruction in Iraq before the invasion.

But we believed in the principle that she was upholding, and we still do: the right of a journalist not to reveal a confidential source, even if it means going to jail.

Now it turns out that the white knight has a big black eye.

The Record goes on to say clearly what many only admit in hushed terms--it's not the Libby's waiver was any less coerced than his first one, it's just that Fitzgerald outlasted the sainted Judy. It compares the NYT's (now inoperative) distancing from Judy to a parent blaming the child for the discipline the parent can't muster.

How convenient for The Times to paint her now in such negative terms, like parents who blame their children when they can't control them.

And then the Record voices what needs to be said. If the press was so gullible as to believe Judy's tale, it doesn't say much of the skepticism and objectivity of the journalistic profession.

All journalists have been tarnished to some degree by this tangled, confusing case.

And it's not just the Bergen County Record that is realizing they've been had.

EJ Dionne and Robert Scheer note that Judy may have won Bush the election by willfully shielding someone she knew to have misled journalists. Scheer places the blame for letting her do that squarely with the NYT management:

That the New York Times again editorialized last week in defense of its knee-jerk support of Miller, even after knowing she deceived her editors, is a startling indication that even some of our most respected media leaders still are missing the point.

It's not the competing news outlets the NYT should be afraid of, though. The title of this post, "information does not yearn to be free," was something Pinch said in the context of a perhaps agonized explanation of ways the NYT might increase its declining profits. And sure, his handling of the Judy Miller thing certainly isn't going to help increase revenues.

But I think the comment could just as easily be read as Pinch's pathetic statement of his belief that he controls the flow of information (and can you believe this came from a newspaper publisher???) And I think Pinch is dead wrong if he believes the full story about the NYT's complicity in letting a top Administration official obstruct justice will never come out. He's dead wrong if he believes appeasing Judy will prevent this information from getting out. There are too many people who know about what the NYT did--many of them the people in the newsroom Pinch is antagonizing by keeping Judy on. What's he going to do, buy off the entire newsroom? Talk about declining profits.

Plus, there's too great a chance Judy may be further involved in the Libby case, and may be forced to admit some of the things Pinch'd rather remain unsaid.

And so I say to the board members and family members who share some responsibility for the future of the NYT. Do you want to be able to say you acted to separate the NYT from this shameful story? Or do you want to let Pinch continue to renew your complicity?

Comments

[depressed (formerly obsessed)]

I'm truly stunned by the stupidity of the hundreds of editorialists who defended Judy. I don't see why the New Bergen paper couldn't have come to the same conclusions in July.

[emptywheel]

Well, at least they're admitting their error.

I think the reason few bigger newspapers are is because they would also have to admit their own complicity with this war.

And btw, depre/obse ssed. Why the swtich?

[depressed (formerly obsessed)]

And the worst of it -- of this whole affair -- is that Judy, NYT, Time, Cooper, Russert and others kept this matter out of the debates and the presidential campaign. I still don't think most Americans have grasped that the media is responsible for George Bush winning the election.

Can you imagine how the Cheney/Edwards debate might have gone if Judy had testified when Fitzgerald first asked her to and Libby had been indicted over a year ago? Or if NYT and Time has busted McClellan on his lies about Rove & Libby?

[depressed (formerly obsessed)]

As long as Rove walks free, I'll be depressed!

[emptywheel]

the media is responsible for George Bush winning the election.

Well, they were responsible the first time, too.

Don't be depressed. Rove will get his, I still feel confident.

[depressed (formerly obsessed)]

New scoop from Raw Story (not yet linked):

LAWYERS SAY BOLTON'S CHIEF OF
STAFF WAS CIA OFFICIAL NAMED
IN LIBBY INDICTMENT... SOON...

[emptywheel]

Which would be Fleitz.

Interesting. Not sure why Fitz would call him a senior official. But it would certainly make sense.

[emptywheel]

Of course, Raw Story is also the source who was sure Hannah had flipped, he of the recent big promotion over at OVP.

[depressed (formerly obsessed)]

Do you think Hannah:

1) didn't flip?
2) is still in trouble?
3) has been promoted because Cheney wants to "keep friends close and enemies closer"?

Also, if it is Fleitz, what do you make of that?

[depressed (formerly obsessed)]

also, the perennial question: if it is Fleitz, who leaked it and why?

[depressed (formerly obsessed)]

the link is up

They're sticking with their story on Wurmser and Hannah and in fact, it appears that their lawyers may be RawStory's source.

[emptywheel]

I think it HIGHLY unlikely Hannah has flipped. I think it was the Isikoff article that said all witnesses to teh GJ have to go through the front door now (the argument is that Novak, and who knows who else--Ari?--got to go through a back door which prevented everyone from knowing they were talking). Rather, I think Cheney knows Fitz tried to flip him and failed and this promotion is Cheney's way of saying, "Ha! Mr. Prosecutor, you'll never get to me!" In fact, Hannah could have entered into "negotiations" with Fitz on flipping, only to figure out what Fitz has on Cheney.

Anyway, I just think Hannah wouldn't have gotten the promotion unless Cheney knew he was above suspicion.

Now Fleitz went on two days of surprise leave right before the indictments. So he may have had to testify. As I've said all along, it would not be illegal for Fleitz to pass on teh information--not even Plame's name--since he would have passed it onto people who had sufficient clearance.

But from the indictment, it looks like Fleitz (or whoever the Senior officer is) already talked. Because how else would Fitz know of their conversation?

So if it is Fleitz, then the "who leaked" and "why" is probably someting like the following (all speculation):

One of Rove's tidbits is that Fleitz was the source not just of the "was believed to be responsible for sending Wilson on the trip" but also for the detail that she was a NOC. And Fleitz was brought back in on Thursday and Friday to testify to the effect. So the lawyers (Fleitz' lawyer, in this case) is leaking to telegraph it to Libby so he knows Fleitz had to reveal more.

If it is Fleitz and he was the source of the NOC information, it gets us slightly closer to a IIPA case against Libby.

[depressed (formerly obsessed)]

muchas gracias!

[emptywheel]

Some comments about the story.

I don't see how you can write that story and not deal with how HAnnah is still employed.

Also, they state uncritically that MSNBC said that Bolton testified. If that's their only source, I'm unimpressed. I frankly do think it likely that Bolton testified. But to cite the MSNBC source without saying Shuster had to retract it is not entirely forthright.

But I also doubt that Fitz would have allowed Wurmser and Hannah to plead if that was the only information they provided. I could have come up with that timeline. Further, if Bolton had had a conversation with Libby about this, it would have been included in the indictment--unless there's good reason not to (that is, that it reveals further conspiracy that Fitz is still pursuing.

SO in other words, the story is not implausible. But there are things that give me pause (which might just be sloppiness). And if Wurmser and Hannah have flipped, there's a lot more going on than just this story.

[Meteor Blades]

...slightly closer to a IIPA case against Libby.

From your lips ...er...keyboard to the eyes of whatever deity is lurking.

[howard]

but to return to an aspect of the original post, i've been saying since the sunday mea culpa that what we've learned is that pinch is an idiot.

were i a shareholder, i'd certainly be curious why the publisher is allowed to continue to harm the times' most important asset: its reputation.

[James]

At least we all knew that Cheney was the enemy; but the NYT had me fooled. No worse betrayal than reelecting Pinch and Judy afer all of this.

[emptywheel]

howard

Yeah. I was a bit disingenuous when I made the Conrad Black comparison because the NYT has a real byzantine ownership structure that no doubt indemnifies their largely powerful stockholders.

But the family stockholders, they really ought to be thinking about ways that Pinch's games might put THEM into legal jeopardy.

[the patriot]

from david corn:

"I know there are plenty of people--not in the White House, but elsewhere--who are still hoping that Patrick Fitzgerald has an indictment or two up his sleeve. I've heard all the reasoning that underpins such hopes. He's building a case out from Scooter Libby; he's being so meticulous so that when he indicts Karl Rove there will no questions about the case. But, as I've noted, during the press conference last Friday, Fitzgerald sent out the vibes of a fellow who was close to the end of the endeavor not someone about to start a new chapter. A TV commentator I know informs me today that a friend of his who is close to Fitzgerald says Fitzgerald's done."

[Jay Rosen]

I think your questions for the board are well put.

By the way, the view of many who believed in Miller's cause when she resisted Fitzgerald is that she did damage to the reporter's cause by showing prosecutors everywhere how to get their way. Jail 'em and hold on.

Guess where this view has never appeared? Right, the New York Times. No news story yet on hot disagreement in press circles about Miller's alleged heroism. Many in the press say she lost them ground with her abandoned stand. Arthur Sulzberger's prediction that she would never crack makes it worse.

But Times readers aren't allowed to know about all of this.

Keep it up, wheel.

[emptywheel]

the patriot

Maybe Corn's right. Maybe he's not. I'm not sure why Fitz' friend is going to get any better leaking than all the rest of his friends. But the main substance of Corn's assertion is Corn's gut feel, "the vibes of a fellow who was close to the end." And given his questionable judgement of late, particularly wrt the Pajamas media, I'm not sure I trust his gut feel.

[Mimikatz]

As I have said before, I really do think that other than possibly Rove or another leaker, I do not think we will see more indictments. I agree that Fitz is essentially done, although the controversy itself is far from over. But it wioll continue in the political arena, not the judicial arena.

I think Fitz danced around the issue of whether Valerie is "covert" within the meaning of the IIPA--if, as reported, she has essentially been in the US since 1997, she isn't. She has to have served overseas as an agent in the last 5 years prior to the outing. Also, conspiracy is VERY hard to charge under the IIPA. And the problem with the Espionage Act is the difficulty of proving intent to harm the US. While Kagro has made a good case that the whole thing was subverting the intelligence activities of the US, I think it is pretty clear from the press cxonference that Fitz is not going to take that tack.

[DemFromCT]

Jay, good luck with that book, and come back when you can. As you point out, Times readers do know all of that, just not from the Times. As a born and bred New Yorker, I know those days are long gone. And they must/should know that Times Select just exacerbates the situation.

TRhe idea that somehow the Times has any kind of monopoly of information in this internet age is just mind-boggling. Forget the blogs... just for a moment. Even the WaPo has better coverage of the Times than the Times. The free-thinking blogs speculate better (they are freer to do so), but information abounds everywhere, dug out by everyone.

[emptywheel]

Re: the things NYT won't admit. I'm not sure how many read George Freeman's letter to Judy, which she interpreted as "talking points" and got really angry about? (I'm looking for the link--it's a PDF though.)

He was desperate to have her remain in jail until the GJ term was up so as not to cede the point. An excerpt:

Finally, some fallacies ought to be cleared up. One is that Mr. Fitzgerald would try to extend her jail term either by indicting her for criminal contempt of court, different from the civil contempt of court charge she already had been incarcerated for, or my impaneling a new Grand Jury.

[snip]

After two years of investigation and millions of dollars expended on this project, it would have been simply a losing proposition to argue that this one reporter would truly be the difference in a failed or successful invsetigation, and that any addition time in jail wouldn't look to the public like governmental piling on.

I don't think Judy was willing to risk that (as I said, Fitz outlasted her). But I also think Freeman is a little nuts if he thinks that Judy wasn't central to this investigation ... or still isn't.

I'm sure that Joseph Tate, Libby's lawyer, is shittier lawyer. But Freeman doesn't seem to be doing NYT any favors himself.

[reticulant]

Dear Pinch and Judy,

FYI.

New York Penal Law
Chapter 40 of the Consolidated Laws
Part Three--Specific Offenses
Title H--Offenses Against The Person Involving Physical Injury,
Sexual Conduct, Restraint And Intimidation
Article 120--Assault And Related Offenses

Section 155.05 Larceny; defined

1. A person steals property and commits larceny when, with intent to deprive another of property [1] or to appropriate [2] the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.

2. Larceny includes a wrongful taking, obtaining or withholding of another's property, with the intent [3] prescribed in subdivision one of this section, committed in any of the following ways:

(a) [...]

(e) By extortion.

A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will:

(i) Cause physical injury to some person in the future; or

(ii) Cause damage to property; or

(iii) Engage in other conduct constituting a crime; or

(iv) Accuse some person of a crime or cause criminal charges to be instituted against him; or

(v) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or

(vi) Cause a strike, boycott or other collective labor group action injurious to some person's business; except that such a threat shall not be deemed extortion when the property is demanded or received for the benefit of the group in whose interest the actor purports to act; or

(vii) Testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

(viii) Use or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely; or

(ix) Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

Section 155.30 Grand Larceny in the fourth degree

A person is guilty of grand larceny in the fourth degree when he steals property and when:

1. The value of the property exceeds one thousand dollars; or

2. The property consists of a public record, writing or instrument kept, filed or deposited according to law with or in the keeping of any public office or public servant; or

3. The property consists of secret scientific material; or

4. The property consists of a credit card or debit card; or

5. The property, regardless of its nature and value, is taken from the person of another; or

6. The property, regardless of its nature and value, is obtained by extortion; or

7. The property consists of one or more firearms, rifles or shotguns, as such terms are defined in section 265.00 of this chapter; or

8. The value of the property exceeds one hundred dollars and the property consists of a motor vehicle, as defined in section one hundred twenty-five of the vehicle and traffic law, other than a motorcycle, as defined in section one hundred twenty-three of such law; or

9. The property consists of a scroll, religious vestment, vessel or other item of property having a value of at least one hundred dollars kept for or used in connection with religious worship in any building or structure used as a place of religious worship by a religious corporation, as incorporated under the religious corporations law or the education law.

10. The property consists of an access device which the person intends to use unlawfully to obtain telephone service.

Grand larceny in the fourth degree is a class E felony.

Section 135.60 Coercion in the second degree

A person is guilty of coercion in the second degree when he compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will:

1. Cause physical injury to a person; or

2. Cause damage to property; or

3. Engage in other conduct constituting a crime; or

4. Accuse some person of a crime or cause criminal charges to be instituted against him; or

5. Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or

6. Cause a strike, boycott or other collective labor group action injurious to some person's business; except that such a threat shall not be deemed coercive when the act or omission compelled is for the benefit of the group in whose interest the actor purports to act; or

7. Testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

8. Use or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely; or

9. Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

Coercion in the second degree is a class A misdemeanor.

Notes.

[1] "Property" means any money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation.

[2] "Appropriate." To "appropriate" property of another to oneself or a third person means (a) to exercise control over it, or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (b) to dispose of the property for the benefit of oneself or a third person.

[3] "Intentionally." A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

[Jay Rosen]

Thanks very much, Dem. I find this all so compelling and surreal that I am rooting for others--like the writers here--to make sense of it.

wheel: I don't think I have seen that letter. Could you find the link: Freeman writing to Miller?

It's important for bloggers to keep discussing Miller's case because the sentiments of the people who:

1.) set high standards of honesty for Times journalism
2.) work at the New York Times
3.) see Judith Miller as doing grave damage

are muffled, infrequent, unvoiced, suppresed, or self-censored. They show up as anonymous quotes: "A disressed staffer said..." Some of them are reading weblogs and finding what they think better represented by the bloggers outside than the bosses within. They feel they cannot speak up.

[emptywheel]

Shoot, I'm looking Jay, but I haven't found a link to it.

I got it, IIRC, either from one of the NYT "other resources on this" screens or via Romenesko. It's dated October 4, it's a 4-page memo, and the document is a PDF of a scan (so searching on the text isn't working). I'll keep looking. But in the meantime, here's another peach line from it:

And the nature of the source, a government insider playing Washington politics rather [sic] a whistleblower bravely attacking bad business practices of a conglomerate, were conditions far from her control.

Note there are a number of typos in the memo. Did George type this up himself, rather than have someone look over his work to make sure it was free from errors?