The nation has been abuzz about the testimony of New York Times reporter Judy Miller. She recently answered questions before a grand jury empanelled to investigate the leak of Valerie Plames name to the public. The leak is thought to have been made in retaliation for her husbands public criticism of President Bushs statements on WMD in the lead up for the invasion of Iraq. Ms. Miller agreed to testify after striking a deal with special prosecutor Patrick Fitzgerald after spending 85 days in prison, and after it became clear she might be facing a year and a half more.
Many have sought to make Ms. Miller a heroine of the First Amendment, but the facts of her case do not live up to the principles invoked. Ms. Miller, a notable Times correspondent and Pulitzer Prize winner, first began to lose credibility after it became clear that much of her coverage of weapons of mass destruction, prior to the war in Iraq, had been little more than recycled administration rhetoric. Her failure to critically analyze claims by supporters of the war, such as the now discredited Ahmed Chalabi, led to the publication of numerous misleading articles that the Times later had to apologize for. Millers actions in the leak investigation are far more damning, however, for both her and the paper that so admirably jumped to her defense.
As Miller sought to resist a federal Grand Jury subpoena, she relied on the belief that the law and the courts should respect the promises of confidentiality that reporters give to their sources. But this was not the noble effort of a reporter striving to protect a source from government retaliation. To the contrary, Miller had been aiding and abetting an agent of the government in just such an act of retaliation. How would privilege in this case serve to further good journalism? How would it further democratic discourse? Even attorney-client privilege can not protect a lawyer who works with a client to commit a crime. Surely a reporter shield law shouldnt protect a reporter who uses anonymous sources to abet the agenda of entrenched powers in order to quash dissent.
The facts also make clear that confidentiality became irrelevant to Millers case long before she ever set foot in prison. Louis Scooter Libby, Millers sole source in the matter and chief of staff for the vice president, waived his right to confidentiality long before Millers stretch in the big house began (for the sake of full disclosure, Libby and I are distantly related through marriage). Some chock up Millers prison stint to a misunderstanding, her belief that Libbys waiver of confidentiality was less than voluntary. Her lawyer, respected First Amendment scholar Floyd Abrams, stated that several tangential remarks made by Libbys council sent mixed signals and indicated that Libby did not truly want Miller to testify. I believe Miller refused to testify for a different reason.
Miller saw prison as a career saver;
it would turn her into a cause celeb and put her back into the good graces of the papers publishers and senior editors, men and women who had been fighting to expand the protection of confidential sources since the famous Pentagon Papers case in the 70s.
Since being focused on by Fitzgerald, Miller has faced criticism and resentment from many of her colleagues at the Times. Reporters at the paper spent frustrating months at the center of a story that they were not allowed to cover for fear that it might impact negatively on Millers Case. In an October 16th Times article agonizing over the papers handling of the affair it was made clear that the papers upper echelon communicated to reporters that the Plame investigation was generally off limits. Such restrictions violated the papers duty to its readers and seriously compromised its integrity at a time when it was still recovering from the Jason Blair scandal.
The Times self-analysis and self-criticism of its recent actions is the first step needed to regain the trust of its readers, but the most crucial is to cut all ties to Judy Miller. How can we ever again put stock in her byline or in a paper willing to print it? How often must the front page plead mea culpa for Millers misdeeds before the Times frees itself from her for once and for all?
This incident has been damning for Miller, it has been damning for the Times, but it should not damn the fight for a national shield law. In 1972, in the case of Branzburg v. Hayes, the Supreme Court largely denied the principle that the constitution provides a basis for such a privilege, especially with regard to grand jury subpoenas. Since then, the Times and other members of the journalistic community have responded by asking Congress and numerous states to establish such a privilege through legislation. A shield law should be addressed by Congress, for confidential sources are vital to democracy.
Confidential sources are essential in informing the public. Few things are more important than the maintenance of a press able to bring forth those stories so dangerous and charged that no one is willing to speak on the record for fear of retaliation. As long as the government is able to intimidate and punish reporters who maintain such confidences, the public will lose a crucial avenue to information that goes beyond the coordinated press releases and choreographed press conferences that are the trade mark of the Washington press corps.
Each and every one of us benefits from these sources and promises of confidentiality on a daily basis. On any given day, every major paper in this country will run front page stories containing an anonymous source. In this publication, this reporter wrote a news article last year that required I make a promise of confidentiality and anonymity to a source, one that I would have kept at nearly any cost. But no privilege is absolute, and a well-written shield law would make clear that reporters should have no privilege when their source is a protected insider, targeting a dissenter, and using the media as an accomplice.
