Wednesday, July 06, 2005

Suite: Judy Pinstripes

It doesn't happen too often, but Jonah Goldberg and I seem to have entered temporarily into the Vulcan mind meld. I disagree with some of his conjecture about the Plame case, but this part of his post today is spot-on:
I also think it is simply outrageous that people think journalists should have flat-out immunity to commit a whole range of crimes. Let's assume the conspiracy theorists are essentially right. The White House deliberately “outed” a CIA operative, knowingly putting her life in danger (which always sounded like a lot of hype, but again, let’s assume it’s true). Well, why do we have these laws on the books? To protect the lives of CIA agents. Right? Well, why on earth should a journalist have the right to be an accomplice to a crime? If it’s against the law for Karl Rove to put a CIA agent’s life in jeopardy, it should also be against the law for Bob Novak, or Judith Miller or Matt Cooper to do it. It should also be against the law for journalists to knowingly help someone commit such a crime. Doctors have special privileges, but they don’t include aiding and abetting crimes. Psychiatrists have special privileges, but they must take affirmative steps to prevent a patient from hurting others. Why should journalists be exempt from such requirements?
Bingo. The pleas of journalistic integrity and the dire warnings of damage to future investigative journalism (in light of the past few years, that's a knee-slapper) from Cooper, Miller, their employers and attorneys are hollow and pathetic. If Miller refuses to talk, she deserves more than a couple of months in jail.

Now, depending on what happens next, Jonah may not like the real-world result of his logic. We'll see.

34 Comments:

Anonymous Anonymous said...

And depending on what DOES happen next, we may see Goldberg furiously backpedaling on those comments at some point soon.

7/06/2005 9:46 PM  
Anonymous sueanne said...

"chestnut brown canary, ruby throated sparrow..."

7/06/2005 9:57 PM  
Blogger Jake said...

I find it deeply disturbing that I agree with Jonah Goldberg.

7/07/2005 8:05 AM  
Blogger owenz said...

Jonah is dead wrong here. And frankly I'm surprised that TCR would be sucked in by his argument. Although reporters should not be able to resist a court order to divulge a source's identity, it would be an unmitigated disaster if we punished them as "accomplices" when a criminal leak of classified documents occurs.

If you were to punish reporters when classified information is published, the door would be open to journalists and publishers being prosecuted for the release of the Pentagon Papers, the torture memos, the FBI report of Guantonimo interrogations, and much of Watergate. After all, many of these items were "classified" and were therefore illegal to leak to the press. By Jonah's logic, they would also be illegal to publish – and any reporter who disseminated information contained in such documents would be an "accomplice" to the leak. The real world effect would be that no classified information would EVER be published, regardless of the public interest, since the reporters documenting the information would be just as legally culpable as the leaker himself.

The real question here (I hope) is not whether journalists should be criminally prosecuted for publishing confidential material, but whether they are allowed to conceal the source of such material once it is published. Clearly, the answer to the latter question is no. Miller deserves to go to jail for refusing to explain HOW she found out about Plame’s role at the CIA. After all, her first amendment right does not extend to obstructing a federal grand jury.

To suggest she should go to jail as an "accomplice" to a criminal leak, however, is downright scary. As poor a reporter as Miller is, the impact of such a law would be both devastating to the public interest and a huge gift to those who seek to promote and accelerate government secrecy.

The fact of the matter is that it is government officials, not reporters, who are charged with protecting state secrets. Although there are occasionally cases such as this, where a reporter or publication acts improperly in handling such information, our system (as well as the first amendment) relies on reporters being able to publish classified information once it arrives in their hands. The person to punish, in virtually every case, is not the reporter but the person who provided the reporter with the secret information. By refusing to identify the leaker, Miller is breaking the law and deserves to be punished. To call her an accomplice to the leak, however, puts us on a very slippery slope indeed.

7/07/2005 9:19 AM  
Blogger owenz said...

Quick Hypothetical:

The NY Times receives an anonymous package containing documents containing incontrovertable proof that President Bush specifically endorsed the use of torture at US military bases around the world. The NY Times publishes said documents, claiming it is in the public's interest to know.

According to Jonah's logic, the NY Times would be:

A. Within its First Amendment right in publishing the documents

B. A "criminal accomplice" in the leak of classified information

(In essence, Jonah is arguing against the position taken by the Supreme Court in the Pentagon Papers case. Indeed, when Justice O'Conner is replaced, he may get his way.)

7/07/2005 9:36 AM  
Anonymous Anonymous said...

agree with TCR on this one.

7/07/2005 10:49 AM  
Anonymous kindness said...

The progressives don't have much sympathy for Judith because she did such a good job parroting the bush43 administrations fabrications which helped beat the drum for a poorly thought out and just about criminal invasion of a country that hadn't harmed or threatened us. So many of them/us feel that this is what she gets for choosing her friends poorly.

On the other hand, when the same (well, almost same) thing went down during the Watergate/Pentagon Papers era, we all supported disclosure of the info while also supporting shielding the source.

It's a paradox certainly. There are no hard and fast rules. A shining example of why each case needs to be examined individually for it's own merits.

Me, while this will chill some whistleblowers potentially coming forward, I'm not sad about Judith doing time for playing footsie with Karl Rove or his minions.

7/07/2005 11:31 AM  
Blogger Tayefeth said...

There's a difference, IMO, between shielding a source who's blowing the whistle on a crime and shielding a source who committed a crime. Josh Marshall has promised a post on why that reasoning doesn't hold water, but I'm sticking with it as a first approximation.

7/07/2005 12:17 PM  
Anonymous EWK said...

I think the problem is you can't define clearly when leaking classified information is for the good of the country on neutral terms. What I mean by that is you have to know all the circumstances; there is no way to define it abstractly that allows for the Pentagon Papers and doesn't allow Plame. Ultimately it comes down to the motives of the leaker, which ultimately is for a Grand Jury to decide on a case by case basis I guess. All we can really ask is that full due process is carried out, as in this case ultimately going to the Supreme Court.

7/07/2005 1:16 PM  
Anonymous EWK said...

Tayefeth, it simply isn't that clear. Ellsworth and Felt were both committing crimes when they leaked the Pentagon Papers and Watergate.

7/07/2005 1:18 PM  
Blogger owenz said...

Jonah and TCR aren't talking about "shielding sources," folks. They are talking about making reporters into accomplices/accessories when they report on leaked classified information. Jonah's thought process goes like this:

* leaking classified info is illegal

* the reporter, knowing the info is classified, is therefore an accomplice to a crime

* the reporter should then be charged with a crime

Jonah has no interest in the source shielding debate. Reporters already lost that one, which is why Judie is in the clink. He has leap-frogged directly into "punish reporters for revealing state secrets" territory. Which would be just fine for Jonah, being a big fan of authoritarianism and all.

In Jonah's world, Bob Woodward wouldn't be in jail for protecting Deep Throat, but for reporting the info Deep Throat gave him. Since Bob would be an accomplice to the illegal leaks...

7/07/2005 1:27 PM  
Anonymous Anonymous said...

I am all for the confidentiality of sources - we wouldn't know half of the wrongdoing that goes on in government and corporate America without anonymous sources. So it does serve a good purpose.

However, in this particular case, I don't think my right to know is more important than the lives of case agents especially if they are in possibly hostile countries. My right to know is not more important than the lives of the sources the agents have recruited. I'm sorry but that is the way it is for me.

As for this particular case, Miller and Novak (won't speak to Cooper) have, to one degree or another, not just been mere journalists. This is especially true of Novak. And I feel this information was passed on for political reasons and not for any sense of "public good" so there is no bigger picture, no moral high ground, no greater good served in this situation.

7/07/2005 1:33 PM  
Blogger David Studhalter said...

I agree with owenz, and disagree with TCR, up to the point where he says, "By refusing to identify the leaker, Miller is breaking the law and deserves to be punished."

There is no shield law for the Federal Government for reporters, but there should be. It is the responsibility of government officials to abide by security and secrecy laws, but when they divulge information to the press, it is the responsibility of the press to inform the public. Sure, there is risk, and there is such a thing as civic responsibility... one would hope that reporters would not divulge information which they know or should know is detrimental to national security, or even to an individual, but the duty to keep secrets is over and done with when someone discloses them to a reporter.

As far as shield laws, I believe that this isn't a good example of why we need them, (Watergate is), but the principle that in order to avoid a catastrophic chilling effect on the press, which is vital to a free society, reporters need to be able to keep their sources confidential, just as a priest in confession needs to be able to keep what is said to him confidential. It needs to be a recognized legal privilege; then everyone will know the rules. Sure it makes prosecutors' jobs harder, but the public interest in uncovering corruption and secret doings in government outweighs such considerations.

7/07/2005 3:18 PM  
Blogger David Studhalter said...

See Wash Post Editorial today, with which I entirely agree:
http://www.washingtonpost.com/wp-dyn/content/article/2005/07/06/AR2005070601964.html

7/07/2005 3:41 PM  
Anonymous Anonymous said...

I would add that there is a limitless supply of terrorists. You might catch a lot of flies with flypaper, but the species is doing just fine, thank you very much.

time to find another strategy.

7/07/2005 10:00 PM  
Anonymous Anonymous said...

I would add that there is a limitless supply of terrorists. You might catch a lot of flies with flypaper, but the species is doing just fine, thank you very much.

time to find another strategy.

7/07/2005 10:00 PM  
Blogger Tayefeth said...

ewk wrote:
"Ellsworth and Felt were both committing crimes when they leaked the Pentagon Papers and Watergate."

Right, but they were also blowing the whistle on a larger crime. I've never been quite clear on why Plame's name was leaked. What crime did the leaker in the Plame case reveal? As far as I've been able to tell, there wasn't one.

7/08/2005 1:33 PM  
Anonymous Anonymous said...

The Illustrated Daily Scribble expressed it well.

7/09/2005 9:51 AM  
Blogger Mark said...

I am afraid I have my doubts as to whether Karl Rove leaked any information to anybody. This very well may be a case of some well placed Liberals attempting to discredit Mr. Rove after his "inflammatory" (but accurate)remarks concerning the questionable motives of Liberals.

7/09/2005 7:08 PM  
Blogger Tayefeth said...

Accurate? Since when is wanting to know whether the vermin are weasels or bears the same as "offering therapy"?

7/10/2005 11:09 AM  
Anonymous Anonymous said...

afraid I have my doubts as to whether Karl Rove leaked any information to anybody

Newsweek article just out confirms it.

Matt Cooper's Source:
What Karl Rove told Time magazine's reporter.

7/10/2005 11:39 AM  
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