Andrew O'Hehir's piece on why supporters of a free press should "rally behind" Miller is a little exasperating. I'm all for the need for confidential sources when reporting the news. I'm all for protecting the privacy of whistleblowers. But the Plame affair is not an imperfect First Amendment case, as Times executive editor Bill Keller has implied. It could not be more different. The whistleblower in this matter is Joseph Wilson, not Karl Rove or whoever talked to Miller. Wilson exposed the Bush administration's lies about the efforts of Iraq to obtain uranium. He indicated the deceptions of the President's address in the open, on the Times editorial page. Officials in the administration responded by revealing the identity of his wife, in an attempt to discredit and perhaps punish him. This may well have been a crime. If those officials did commit a crime, they used unwitting journalists in the commission, perhaps trusting that promises of confidentiality would shield them from legal scrutiny later on. Nobody -- and certainly not O'Hehir -- has articulated why they should be so shielded!
The Bush administration has always shown great deftness in its ability to manipulate the press, and this case is illustrative. Now we have a reporter in jail for refusing to reveal the identity of someone in the administration who may have broken the law, and we are drowning in editorials that tell us she is a martyr (however "imperfect") for the First Amendment and that she has a duty to protect her source. Sorry, but it's enough for me that the First Amendment protects Wilson. Times journalists should cooperate with Fitzgerald's investigation. In this way they can work to ensure that those who would do harm to Op-Ed contributors are brought to justice.
-- Eric Knibbs
As he scolds Salon's letter-writers for their anger at Miller, O'Hehir ignores the legitimate argument for jailing Miller, which, ironically, I saw expressed in another of the Salon letters. The argument is that a reporter should be compelled to reveal her source when that source's identity is critical to a felony criminal investigation. All first amendment rights have exceptions, after all, and the courts apparently have determined that this is one of them. O'Hehir may disagree with that opinion, but this article should have been the place to debate it, and his refusal even to address it makes it hard to take him seriously.
-- Manuel Soto
I've read Andrew O'Hehir's "response" to Salon's readers twice now, first in confusion, then in disbelief. Astonishingly, O'Hehir doesn't really answer many of the criticisms he quotes or, for that matter, many other relevant points that he chooses to ignore from the letters that Salon has published or from the columns by journalists who disagree with him.
The problem with freedom of the press is that nobody -- including O'Hehir, I would assume -- is truly an absolutist. To use an obvious (if admittedly extreme) example, few would defend the right of a reporter to hide evidence of an impending catastrophic terrorist attack. Yet, when it comes to protecting sources (even those who screw over the journalists they've spoken to), O'Hehir seems to feel that we must be absolutists. Why? Rather than a reasoned (or reasonable) answer, he simply resorts to the claim that "a matter of fundamental principle might be at stake" and hyperbole about "the price we will all pay for this karmic redistribution of justice."
So we're back to old slippery slope. But, to chase the metaphor, Judith Miller's slope is on an entirely different mountain. O'Hehir does cite a reader's argument that "the source she's now protecting wasn't some selfless, embattled whistle-blower, but rather 'a high government operative determined to stab a whistle-blower in the back,'" and his response is... well, what is his response?
He doesn't seem to have one. He argues that "no reporter can be expected to check out the legality or ethics or motivations of all sources in advance," but he never addresses the reader's underlying question: When reporters and editors serve as unquestioning and propagandistic mouthpieces for corrupt (and possibly criminal) government officials, how is our press "free"? This dilemma underscores the real problem: we are close to entering a world in which the mainstream media is little more than another branch of the government, in which politicians have learned that they can turn a principle based on misguided journalistic idealism into a nearly invincible loophole for smear tactics and disinformation campaigns.
O'Hehir's reasoning quickly approaches Pravda-inspired self-justification for an atmosphere when state propaganda, press releases, and even corporate advertising are hidden behind the easy facade of anonymous sources. The implication is that journalists should be allowed to protect their sources simply because the "right" to do so trumps any other principle, be it the obligation of the press to serve the public interest, the refusal to serve as an unwitting accomplice to a crime, or the reluctance to serve as a patsy for some scoundrel more than happy to hide behind gullible journalists. He never explains why (or when) his cherished method of information gathering outweighs other, equally sound principles. He doesn't even define who's a journalist. Would O'Hehir argue that Armstrong Williams, too, has the right to protect his "sources" in spite of all those undisclosed paychecks coming from the Bush administration?
Maybe, rather than "paying a price" for Miller's punishment, the public will be rewarded when journalists realize they should think twice before trusting (or covering for) a vengeful and malicious administration official who hides behind their willingness to serve as martyrs. Even O'Hehir implies elsewhere in his essay that some good may come out of this: that the "free press" might finally clean up its act. Amen to that -- but I won't hold my breath.
In his closing, O'Hehir approvingly quotes one reader's sentiments, "The free press belongs to everyone; not just the New York Times, not Time, and not even to Salon and the blogosphere." Such an easy and irrelevant platitude avoids the real problem entirely. Instead, we should be asking ourselves what we should do when the press belongs to the White House.
-- David Cloyce Smith
It really isn't that complicated, and I'm astounded at how many people, left or right or wherever, don't understand that jailing reporters for following the standard code of journalistic ethics is a terrible idea, and more reminiscent of some backwards Zimbabwean nation than any America I want to be a part of. It's always disturbing when the left acts exactly like the right: It destroys any possible claim to moral superiority that we might have, and for what? To temporarily imprison some reporter with whom we disagree? I thought we were better than that. I guess we aren't.
-- Abraham Epton
It is a testament to Salon's integrity that you're wrestling with your readers' objections to Judith Miller apologists, showing more capacity for self-examination than many journalists at this juncture. I do not read the New York Times, so I have no axe to grind about Judith Miller's past reporting which clouds most discussion of this issue. The value of anonymous sources is unquestionable to any casual student of journalism. The problem is that O'Hehir and most other journalists believe that the right to protect their sources is categorical and beyond judicial review. As Michael Kinsley has pointed out, even Nixon turned over his tapes when judges ruled against him. We in the public value our journalists, but we cannot understand why they are above the law when Nixon's not.
O'Hehir and many of his colleagues talk often of the terrible consequence that will befall anonymous sources if Miller were compelled to testify. Why is there no discussion from O'Hehir of a different "chilling effect," the daunting message that Miller's own actions send to future whistleblowers?
Thanks to Judith Miller, the next Richard Clarke, the next Joseph Wilson, the next Coleen Rowley, the next Sherron Watkins will all know that if the administration doesn't like what they're saying, a "senior administration official" speaking on "double super secret background" can anonymously smear that whistleblower however he chooses. And the Times will defend with its reporters' own freedom the administration's right to secretly throw any mud they want at those who would expose the truth. Where is the concern about that very real possibility?
-- Brian Nelson
I don't think Judith Miller is Skokie redux so much as Martha Stewart redux -- the woman taking the fall for the smaller "infraction" while the guys (Ken Lay, Shrub, Cheney, Karl Rove, Robert Novak, et al. ad nauseam) walk away with relieved smirks on their faces.
The spectacle of Ms. Miller being punished for the treason she didn't print while no one seems to expect anything to happen to Robert Novak for the treason he did print is Orwellian in the extreme.
I have wondered if the reason Ms. Miller didn't reveal her source is that it is not Karl Rove, but someone who can be impeached. What does the administration have to lose if Karl dances around the legal system for the next couple of years and is granted one of those last-days presidential pardons (assuming he even gets convicted of anything)?
In my younger, less-informed days I was a hopeful idealist, however beleaguered, but events have made it clear that to be a realist is to be cynical, at least about the present administration and its co-conspirators.
-- Kate Gowen
Well, the self-flagellation part of Mr. O'Hehir's article offered some satisfaction, but he is still missing the point that his readers get. Anonymous sources are not born into this world with an "anonymous source" tag on their backsides. They are anonymous sources because a reporter grants them anonymity. Why did Judith Miller grant her source anonymity? It wasn't for a story, because, as everyone is so quick to point out, she didn't write one. She could have written, "White House aide attempts to reveal classified information to discredit war critic" and been a hero, but she didn't. She granted anonymity for continued access. This is not noble, but self-serving. It's not a First Amendment issue. It's a reporter covering her ass.
-- Rebecca Begley
I am sure there are many people who look on Judith Miller's jail time as justice because no court will send her to jail for her fiction that enabled the war. I am one of those people. And, OK, I am willing to be lectured by Andrew O'Hehir on that.
However, what the writer does not address is the fact that Judith Miller is going to jail because what she claims to protect is, by itself, a criminal act. She is not protecting someone who provided her information on a criminal act (as in Felt/Woodward) -- the act of passing on the information was, itself, a criminal act.
To paraphrase the other reader, I hope she rots.
-- Srabani Banerjee
As I tell my children, sometimes doing the right thing doesn't feel good, but that doesn't mean it's not right.
I hate the way the press spent Bush's first term playing compliant lapdog. As Andrew O'Hehir points out, Judy Miller was perhaps one of the most egregious, especially in her WMD reports. But... however much I would love to see the perpetrator nailed for leaking Valerie Plame's identity (and we'll see if the Bush administration can push its slime quotient any higher by giving Rove a pass, assuming it really was him), the press' ability to use confidential sources appropriately and keep them confidential is crucial.
Note the word "appropriately." The respect and trust of the public cannot be maintained when reporters use unreliable or unsubstantiated anonymous sources and then have to retract their stories days later. When it reaches the point where the Capitol Steps are using Newsweek retractions as gag lines in their ads (not just their skits), you know there is a problem.
-- Karen Kasper
I still find myself mystified by Salon's coverage of Judith Miller's incarceration for refusing to cooperate with a federal prosecutor investigating a serious violation of federal law. The recent opinion piece by Andrew O'Hehir simply proves that he may be so blinded by his own biases that he cannot discern why it is that people largely disagree with the media's position on this case. Believe it or not, I don't want Miller to go to jail because I think it's karmic justice, or because I don't like her or because I want to see Karl Rove fired and to imply that this the root of our position is insulting.
Miller is not being incarcerated for writing anything. She's hasn't been targeted as a political enemy. She's not in jail for speech and the principle that was involved in the Skokie case isn't remotely related. Press freedom doesn't mean that the press is free to do anything it wants. The Constitution doesn't say that members of the media can refuse to provide information to the federal government when a serious crime has been committed; it says that journalists cannot be jailed for writing things. She may be a journalist, but this isn't about journalism. Whoever gave her whatever information she has concerning this criminal act is not a "confidential source" for an article, because she didn't write one. Being a "journalist" doesn't give a person rights beyond those of ordinary Americans.
The bigger constitutional principle being defended here is the rule of law and the idea that all Americans are treated equally under that law. Is O'Hehir saying that our society should maintain a double standard? Can powerful people get away with criminal activities simply by tricking journalists into shielding them? Shouldn't we step back and realize that the Novak "story" wasn't even journalism, that any "sources" that provided information concerning Valerie Plame were actually using and manipulating our free press to silence and discredit a political opponent? Is the media incapable of admitting that they were, and have been and continue to be duped into serving as the instrument of a political party? Where is the outrage at Novak? Why aren't journalists outraged at being used as political pawns by Karl Rove? Isn't the greater threat to press freedom and freedom in general the threat of the media turning into an instrument of the controlling political party?
-- Joseph Bell
Andrew O'Hehir -- himself an excellent journalist -- argues well for why Judy Miller being in prison matters, but I'm not entirely convinced. I wonder: Was Judy Miller really practicing journalism at the time? Reporting is an activity, not a mere identity. A reporter doesn't have blanket immunity from ever testifying anywhere. If Karl Rove (or Libby, or Cheney, or Chalabi) leaked Plane's covert identity to Miller and she is refusing to divulge the contents of that conversation, then yes, she should be privileged to keep that secret. (That's not the state of federal law, though, as the NY Times itself noted.) In that case she's a martyr to the ideal of the free press. But one thing that's shockingly clear after the Matt Cooper ballet is that Patrick Fitzgerald knows more about what's actually going with this case than do we in the public -- and he can't talk about it yet.
Specifically, we don't know if he is seeking to have Miller testify as to what she said rather than as to what she heard. If she wants to hide her role in a conspiracy to discredit Joe Wilson -- as, in effect, an activist rather than a journalist -- then why should we applaud what is then her misuse of the reporter's privilege? This is where her background matters: She has given the public little reason to trust her reasons or her reasoning. I can't recall another case where it was unclear whether a journalist asserting the privilege was actually operating as a journalist at all. (Why didn't she publish a story on the matter? How uncharacteristic!) So I'm not sure that the bad example this sets is widely applicable.
To me, the surprise of Cooper's cooperation is that he wouldn't talk about Rove even after being given a general waiver from him out of concern that the waiver was "coerced." (Rove was coerced? Does that even begin to make sense?) Cooper cooperated only after Rove's lawyer claimed that Cooper wasn't going to jail to protect Rove -- evidently not so. If Miller is in jail to protect Rove, why doesn't she accept Rove's blanket waiver to testify even now, and walk free? Can someone ask Luskin whether Miller has Rove's permission to testify about whatever he told her? If she's protecting Rove in spite of explicit (and, come on, not even conceivably coerced) permission to testify, then why should we be concerned about her? Can she have a viable privilege when the source isn't demanding protection?
Maybe Miller wants to be a martyr even if the privilege doesn't demand it. She gives the impression not just that she is willing to pay the price of imprisonment, but that she fully embraces it -- perhaps thinking it will do for her what it did for Martha Stewart. But why won't she talk to the grand jury even now, when Rove's role in spreading this story to Cooper is already known? Does she really have more information that's not yet public? Or does she just not want to be the second witness required to convict Rove or perjury? If the latter, is that the kind of thing reporter's privilege is supposed to protect?
Unfortunately, it seems all too plausible that Miller is doing time because she wants to come out as a free speech martyr (and, incidentally, then be able to trash her enemies on the left for not supporting her.) She'll write books and the GOP will put her high on the best-seller list. Worth a few months of prison? She may well think so -- especially if she's really covering up her own misbehavior by cloaking it in journalistic garb. Maybe we'll find out if and when we find out what was said to the grand jury. But, unfortunately, we can't take her word as to what she is doing and why.
So, without knowing the answers to these questions, I can't jump on the Free Judy bandwagon. I'm interested in whether O'Hehir thinks that he knows the definitive answers to these questions or whether he thinks they don't matter. Reasonable minds can disagree about this one, so I don't think that those of us unconvinced that the reporter's privilege truly applies in this case ought to be tarred with the brush O'Hehir waves at us.
-- Greg Diamond
I'm sorry, but I still can't figure out how you get from "freedom of the press" to an absolute right of confidentiality between a reporter and her source. Virtually all professions that have confidentiality arrangements (doctors, lawyers, psychologists, priests, etc) have clear limits on this right. The judges have stated that, in this case, even if a limited right of confidentiality exits between a reporter and her source, Fitzgerald (the special prosecutor) has presented sufficient evidence to overcome any such right. Without seeing this evidence, we can't make a judgment call as to whether or not the judges were right in this particular case, but I see no flaw in this reasoning. If you can't yell, "Fire!" in a crowded theater, why should you be able to cover up a crime (the leaking of an undercover CIA agent's identity to the press) by claiming journalistic privilege?
-- Frank Probst
Sorry, Salon, Judith Miller is not a martyr. The Chalabi dump, the U.N. dump and now the Wilson dump are all exactly the same. She took a story directly from someone in the administration and ran with it. She has not spoken of any bare-minimum fact checking on any of these three stories to see whether they were true before putting it into the NY Times.
In this story (and others) it is assumed that she was "duped." Really, how do we know that she even cared whether it was true? If she doesn't talk about checking the veracity of her stories it certainly appears that she doesn't care.
Secondly, there is an inherent difference in taking sources of the most powerful levels of government and let them use you to put out false stories undercover and punishing enemies vs. taking a story from lower down that the powerful are trying to hide. Judith Miller did the former, repeatedly.
Third is the issue of whether or not Judith Miller should have given the promise of anonymity in the first place. It was the policy of the Times (supposedly) not to use anonymous sources unnecessarily -- and she did. She agreed to become a conduit of dis-information.
That the NY Times and Judith Miller are trying to wrap themselves around the flag of free speech now is pathetic.
-- Samuel Knight
I agree with one point in O'Hehir's article. Heather Havrilesky is terrific and does have "more to say about the state of contemporary America than your average dozen earnest lefty bloggers." Or more than most anybody writing about popular culture today, and she says it more entertainingly. But he is wrong about Judy Miller. Miller is not in jail because she's been a hack whose bad reporting helped lead us to war, and whatever schadenfreude Salon readers feel is beside the point.
Miller's case is in no way parallel to Skokie. In Skokie what was being defended was a fundamental explicit right, the right to peaceably assemble which is clearly set forth in the constitution. No such right is at stake here. Miller is not in jail for anything she published or said, no matter how stupid or wrong. Were that the case, I, and I am sure many of her critics, would defend her fundamental first amendment right to free speech and freedom of the press. She is in jail for refusing to cooperate with a grand jury investigation of a serious crime involving national security. Don't believe me? Read the Appeals Court judges' decisions.
Reporter's privilege, like any privilege, at times must yield to more vital concerns. The idea that this somehow muzzles the press is without merit. In fact it would be more dangerous to give reporters a total shield from revealing sources, as is proposed in a very bad new law, S 342 and HR 581, which states "the right to keep the source's name can not be overcome by the subpoenaing party under any circumstances." This would open up a very wide door for government operatives with bad intentions to give false information to unscrupulous reporters who could then publish any fraudulent, treasonous, libelous or defamatory and politically motivated trash they like without fear of either having to back themselves up or face any consequences. That would do more harm to the public, and to a free press and its credibility than putting Ms. Miller in jail. Judy is not upholding the law, she is putting herself above it.
I can't understand why, in three separate articles, Salon cannot grasp this simple idea.
-- Morris Sheppard
Thank God someone is saying that we need to support Judith Miller in principle if not in substance. I am frequently ashamed that so many people I would normally consider allies are willing to sell out liberal and democratic principles when it seems convenient and doesn't affect the people they cherish the most in our society. Kudos to Andrew O'Hehir and his incisive analysis of this complex issue.
-- Normand Theriault
Miller acted as an agent for the government in her articles promoting a war with Iraq. Now she argues that she should not be compelled to act as an agent of the government by naming her source in the Plame-Rove affair. It seems to me that she lost the moral ground needed to object to the latter when she engaged in the former. In this sense, her case does appear to be different from other prior similar cases: As far as I know, no other reporter who chose not to reveal a source on the grounds that she should not be compelled to act as an agent of the government had previously done exactly that.
The solution seems obvious: Reporters need to never do what Miller did in her Iraq propaganda pieces. Then if the government should try to force them to reveal their sources, they can seek protection from a principle they actually believe in, rather than one they merely try to hide behind when it's convenient.
Finally, you quote a reader's letter, which states: "Do we want the penalty for bad reporting, or at the least, falling victim to deceptive sources, to be not a correction or professional censure, but prison?"
Let's first note the obvious fact: Miller still has her job. Why hasn't the Times fired her for (at best) gross incompetence? And isn't the fact that she hasn't been fired proof that "professional censure" isn't a viable option for rotten reporters?
Beyond that, though, people in other professions do go to jail for being lousy at their jobs. A doctor who ignores professional standards when treating a patient, or an engineer who does likewise when building a bridge, may very well go to jail if their incompetence hurts or kills others. Miller's incompetence in her Iraq pieces has contributed directly to thousands of deaths. Why shouldn't she face jail for that, if a doctor or engineer could do so for comparable failures?
The flaw here is that she wasn't jailed for her Iraq pieces, but for her Plame-Rove work. Perhaps justice would truly be served if she were to be released from jail without telling the prosecutor what he wants to know, after which she would be flown to Baghdad, where she could face the same hazards of war that are faced by the troops sent there in large measure because of her own writing. In the meantime, I don't see how she can expect both to prostitute and seek protection from the same principle.
-- Bill Wolfe
Although I believe that Andrew O'Hehir was right to excoriate those who celebrated Judith Miller's imprisonment, I can't help but feel that the main point is being missed. First Amendment rights are not absolute, and the court was 100 percent within its power to hold her in contempt.
A free press is vital in any democratic society, but when a journalist has a source that may be part of a serious crime, the court system must have the ability to investigate that information. Bob Woodward kept Deep Throat's identity hidden, and someone in a similar position today could still do the same, since the source's identity has little importance to the investigation of the crime. Judith Miller's source, whoever it may be, is intricately connected to the tangled web of the Plame affair, and investigators need access to the source to properly serve justice.
-- Rich Cassara