Oct 1 2005

Defending Judith Miller’s Indefensible Choice

How do you expose corruption by protecting the corrupt?

No reasonable person believes that a journalist’s right to protect their confidential sources is absolute. If a government official told a reporter—after obtaining a promise of strict confidentiality—that he was a serial killer planning to strike again, who would argue that the reporter should conceal that official’s identity—let alone defy a subpoena from a grand jury seeking evidence of the official’s crimes?

This is not to say that journalists aren’t often justified in keeping their sources secret. Government (and corporate) wrongdoing is frequently exposed by people without a legal right to reveal the incriminating information, who may face retribution if they are revealed as whistleblowers. Many times the public interest in learning about malfeasance outweighs the laws that protect official secrets.

In such instances, reporters are fully justified in concealing their sources—even if that means committing civil disobedience. But such a step requires justification: If someone breaks the law by giving information to a journalist, or reveals to a journalist that they have committed a crime, the journalist has to be able to argue that in that specific case, protecting the source’s identity serves the public more than bringing the source to trial.

That’s the argument that is virtually never made in defense of the New York TimesJudith Miller, who is currently in jail for refusing to testify before a federal grand jury about the Bush administration’s exposure of Valerie Plame Wilson as an undercover employee of the CIA. Few if any of Miller’s defenders—who include many usually clear-sighted pundits and media activists—are willing to argue that her refusal to cooperate with the prosecutor in itself serves the public interest. This is unsurprising, because the prevailing assumption is that Miller is protecting an official who outed Wilson as a CIA operative in retaliation for her husband Joseph Wilson’s writing an op-ed about the administration’s WMD deceptions. It’s hard to argue that it serves the public when powerful government officials anonymously expose classified information in order to punish whistleblowers.

Since Miller’s decision to remain silent can’t be defended as serving any public good in itself, her advocates are forced to argue as if any breach of source confidentiality will have a devastating effect on investigative journalism—even as they sometimes concede that, like the privilege against testifying accorded to lawyers, priests and doctors, there have to be some limits on journalists’ ability to protect their sources. Thus the New York Times editorial page, stalwart in its defense of Miller, acknowledged (7/7/05) that “responsible journalists recognize that press freedoms are not absolute and must be exercised responsibly.”

But the editorial never explained why, if some claims of journalistic privilege are not justifiable, Miller’s is one of the justifiable ones. Instead, it merely asserted that any failure whatsoever to honor a promise of confidentiality would make it “immeasurably harder in the future to persuade a frightened government employee to talk about malfeasance in high places, or a worried worker to reveal corporate crimes”—and, on the basis of this dubious claim, boasted that Miller has “acted in the great tradition of civil disobedience” that includes the Underground Railroad, Martin Luther King Jr. and Rosa Parks.

The New York Times’ Frank Rich (7/10/05) declared the Plame scandal “worse than Watergate,” beginning his explanation with the fact that “my colleague Judy Miller has been taken away in shackles for refusing to name the source for a story she never wrote. No reporter went to jail during Watergate.”

He went on to add that during the Watergate era, “No one instigated a war on phony premises.” It’s an odd claim, given that President Richard Nixon’s administration lied constantly about the bloody war in Indochina, including the secret bombing of Cambodia, an action that the House Judiciary Committee considered (but did not adopt) as one of its proposed articles of impeachment against Nixon in 1974.

But it’s telling that Rich attempted to tie together the deceptions used to justify the Iraq War, of which the outing of Valerie Plame Wilson was a part, with the special prosecutor’s attempts to discover who exposed her. If Wilson’s exposure was part of a crime “worse than Watergate,” don’t reporters have an ethical (not to mention legal) obligation to cooperate with efforts to find out who is responsible for that crime?

Recognizing the difficulty of justifying Miller’s withholding on its own merits, Rich invoked the general principle: “Should a journalist protect a sleazy, possibly even criminal, source? Yes, sometimes, if the public is to get news of wrongdoing.” True enough—but Rich made no effort to establish that this is one of those times. That’s understandable, given that Miller’s choice seems to be keeping news of wrongdoing from the public.

Salon, which received a slew of angry letters about its pro-Miller coverage, offered a similar defense (7/13/05): “If journalists can only receive confidential information from the saintly and the pure of heart, the entire enterprise might as well become The View.”

Salon’s Andrew O’Hehir went on to say that “even if you believe that Judith Miller is nothing more than . . .‘a co-conspirator in a government cover-up,’” as one letter to the online magazine asserted, “she’s still entitled to the same constitutional protections as Greg Palast and Amy Goodman.” While obviously the same Constitution applies to everyone, people actively engaged in criminal enterprises (which is what a “co-conspirator” is) generally look more to the 5th Amendment than to the 1st Amendment for protection.

Sydney Schanberg, a New York Times veteran now writing for the Village Voice (7/12/05), called Miller’s stance “honorable civil disobedience. In this reporter’s view, more such resistance is needed at a time when an increasingly imperial presidency is trying to tar and diminish the notion of a free and independent press.” But how is Miller resisting such tarring by refusing to disclose the very hand that holds the tar brush?

Schanberg caricatured the views of those who see no public good served by the protection of Wilson’s exposers:

Some commentators have argued that reporters should only promise confidentiality to altruists, people who don’t have an agenda. In other words, only to good guys—not to bad guys with impure motives. This too is nonsense. Virtually every leaker has an agenda. What should a reporter do if an attorney representing an alleged felon wants to pass you evidence—anonymously—about prosecutorial abuse in the case? Do you blow him off, refuse his information? Isn’t it the press’s obligation to report abuses in the justice system, whoever commits them?

Yes, it is the press’s job to report government abuses. Sometimes that means granting anonymity to sources. But when those sources are themselves the ones carrying out government abuses—as seems to be the situation in the Wilson case, and, frankly, in much of Miller’s reporting (Extra!, 7-8/03)—then anonymity serves no such purpose.

Wrote Schanberg: “The question the public has to decide is whether or not it wants investigative journalism—serious journalism that exposes corruption in high places.” The public not only wants but needs such journalism. But how does protecting an official’s potentially illegal retaliation against a whistleblower further the cause of exposing corruption? Why is it not, instead, an instance of the press facilitating corruption and discouraging its exposure?

Robert Kuttner, editor of the American Prospect, has been sharply critical of the special prosecutor’s efforts to force Miller to testify. In the July 13 Boston Globe, however, he wrote a soul-searching apology, saying that the line he and others had been taking on the case was profoundly misguided:

In the Alice in Wonderland world of the Plame-Rove story, Judith Miller, who worked hand in glove with the Bush administration to publish bogus stories about Saddam Hussein’s alleged nuclear program, is a hero—for going to jail to protect, once again, her friends in the administration. And Time Warner, which turned over Matt Cooper’s notes (for the wrong reasons—Time Warner’s corporate interests—but that’s another story) is the villain. Yet it may be Cooper’s testimony that finally sinks Rove. So who’s the hero and what’s the public interest? . . .It’s one thing for reporters to protect a brave whistleblower who has taken personal risks to serve the public interest. It is another thing for reporters to collude with the powerful to punish the whistle-blower, in this case Joseph Wilson, and his wife, an innocent bystander.

Is the public good served by helping Fitzgerald learn who at the White House broke the law? Or is it served by having reporters protect Karl Rove? We need a public interest test, not an absolute privilege.

Kuttner’s willingness to rethink his instinctual reaction to a case that brings up profound emotions for journalists is commendable. It’s to be hoped that others putting forth a blanket defense of Miller’s refusal to provide testimony will do some similar reevaluation.