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The Jailing of Judith Miller
NY Times ^ | June 29, 2005 | WILLIAM SAFIRE

Posted on 06/28/2005 9:46:09 PM PDT by neverdem

Washington

LEGEND has it when Henry David Thoreau went to jail to protest an unjust law, his friend, the philosopher Ralph Waldo Emerson, visited him and asked, "Henry, what are you doing in here?" The great nature writer replied, "What are you doing out there?"

The Supreme Court has just flinched from its responsibility to stop the unjust jailing of two journalists - not charged with any wrongdoing - by a runaway prosecutor who will go to any lengths to use the government's contempt power to force them to betray their confidential sources.

The case was about the "outing" of an agent - supposedly covert, but working openly at C.I.A. headquarters - in Robert Novak's column two years ago by unnamed administration officials angry at her husband's prewar Iraq criticism.

To show its purity, the Bush Justice Department appointed a special counsel to find any violation of the 1982 Intelligence Identities Protection Act. That law prohibits anyone from knowingly revealing the name of a covert agent that the C.I.A. is taking "affirmative measures" to conceal. The revelation must be, like that of the 70's turncoat Philip Agee - "in the course of a pattern" intending to harm United States intelligence.

Evidently no such serious crime took place. After spending two years and thousands of F.B.I. agent-hours and millions of dollars that could better have been directed against terrorism and identity theft, the prosecutor, Patrick Fitzgerald, admits his investigation has been stalled since last October. We have seen no indictment under the identities protection act.

What evidence of serious crime does he have that makes the testimony of Judith Miller of The New York Times and Matthew Cooper of Time magazine so urgent? We don't know - eight pages of his contempt demand are secret - but some legal minds think...

(Excerpt) Read more at nytimes.com ...


TOPICS: Crime/Corruption; Editorial; Government; News/Current Events; Politics/Elections; US: District of Columbia
KEYWORDS: cialeak; cooper; joewilson; josephwilson; judithmiller; matthewcooper; miller; nigerflap; novak; nytimes; plame; plamenamegame; robertnovak; safire; scotus; valerieplame; williamsafire; wilson
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1 posted on 06/28/2005 9:46:13 PM PDT by neverdem
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To: neverdem

Reporters just don't get it. I do not trust their "unnamed sources." For all I know, the unnamed sources do not exist.


2 posted on 06/28/2005 9:48:17 PM PDT by onyx (Pope John Paul II - May 18, 1920 - April 2, 2005 = SANTO SUBITO!)
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To: neverdem

These scoundrels of journalists should be tossed to lions.


3 posted on 06/28/2005 9:57:04 PM PDT by GSlob
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To: onyx; MeekOneGOP; PhilDragoo; Happy2BMe; potlatch; ntnychik; Smartass; DoughtyOne; ...


Journalists tried write their own "rights".


Now they shall have to live with the consequences of their folly.


I'll bet Judith Miller does not get orange-glazed chicken, rice pilaf, 3 veggies, and desert three times a week in jail for 8 months or so for contempt.


(but I cannot name my two reliable top-level sources)


4 posted on 06/28/2005 9:57:42 PM PDT by devolve (-------------------------------------------------)
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To: neverdem
Aww, poor NY elitists won't be able to destroy lives, reputations, and livelihoods anymore.

Will the accused now be able to face their accuser? Gasp. What a concept.
5 posted on 06/28/2005 9:58:00 PM PDT by roses of sharon (,)
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To: onyx

I don't know what Miller and Cooper have to do with the Novak's story which revealed Wilson's wife's identity. I don't get it.


6 posted on 06/28/2005 9:59:07 PM PDT by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: onyx

http://www.freerepublic.com/focus/f-news/1432728/posts


7 posted on 06/28/2005 9:59:25 PM PDT by Howlin
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To: onyx

As far as I know, there is NO federal shield law. Some states have them, but the Feds don't.

Traditionally, reporters get their sources to talk based on their reputation for their willingness to "go to jail to protect their sources". This implies that a contempt charge is always possible when dealing with anonymous sources.

Tuff shiz for them... I have NO sympathy for them at all. After all, their title of the "fourth branch of government" is self-bestowed.


8 posted on 06/28/2005 10:00:16 PM PDT by clee1 (We use 43 muscles to frown, 17 to smile, and 2 to pull a trigger. I'm lazy and I'm tired of smiling.)
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To: neverdem

Apparently they spoke to the same source as Novak, but did not write the story. The grand jury wants to know who the source was...


9 posted on 06/28/2005 10:00:28 PM PDT by durasell (Friends are so alarming, My lover's never charming...)
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To: durasell

Why not ask Novak? It's his story.


10 posted on 06/28/2005 10:02:27 PM PDT by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: neverdem

They did. And, apparently, he cooperated.

(But I'm not sure of this. Hey, I'm just some guy who reads the paper. Better to do your own research)


11 posted on 06/28/2005 10:03:49 PM PDT by durasell (Friends are so alarming, My lover's never charming...)
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To: neverdem
That law prohibits anyone from knowingly revealing the name of a covert agent that the C.I.A. is taking "affirmative measures" to conceal.

The C.I.A. should have a policy against covert agents marrying diplomats because it's bad for the agency and bad for diplomacy. Valerie Plame should have gotten another job when she got married.

Ambassadors are high-profile people, and it's ridiculous to believe that the wife of an ambassador is immune from public scrutiny. The blame for her public outing rests squarely on her and her lunatic husband, Joseph Wilson.

12 posted on 06/28/2005 10:04:09 PM PDT by HAL9000 (Get a Mac - The Ultimate FReeping Machine)
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To: neverdem
Well DUH!

Should lock up about 90% of all reporters and throw away the damn key.

I personally don't care if Judith Miller and her ilk ever get out of prison.

Has she ever done anything but criticize and blame America first.

Now she will have plenty to write about and she won't have to rely on unnamed sources.
13 posted on 06/28/2005 10:04:19 PM PDT by OKIEDOC (LL THE)
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To: neverdem
LEGEND has it when Henry David Thoreau went to jail to protest an unjust law, his friend, the philosopher Ralph Waldo Emerson, visited him and asked, "Henry, what are you doing in here?" The great nature writer replied, "What are you doing out there?"

Excellent example, Bill. Thoreau went to jail for refusing to pay a poll tax, berated goofball Emerson for not doing the same, and then promptly skipped when someone else paid his bail! Big talk and no balls to back it up, pretty much like most of you scribes.

14 posted on 06/28/2005 10:04:46 PM PDT by Luddite Patent Counsel (Theyre digging through all of your files, stealing back your best ideas.)
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To: Luddite Patent Counsel

You don't like Emerson? What's wrong with Emerson?


15 posted on 06/28/2005 10:07:21 PM PDT by durasell (Friends are so alarming, My lover's never charming...)
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To: neverdem
"But this investigation has shown no national security crime at all..."

****************

Too much of what the Times and MSM expectorate are national security crimes, William- see Dan Rather.


Clean your muskets and sharpen your pitchforks and get ready to ride to the sound of the guns.(KELO) :o}-

Dems, hello??? We could get out of Vietnam; we can’t GET OUT of terrorism.

16 posted on 06/28/2005 10:07:46 PM PDT by sirthomasthemore (I go to my execution as the King's humble servant, but God's first!)
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To: neverdem

I've got no particular sympathy for these two "journalists", but I'll agree that taking this particular case this far has been silly.


17 posted on 06/28/2005 10:10:05 PM PDT by Ramius
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To: devolve

"...who will go to any lengths to use the government's contempt power to force them to betray their confidential sources"

If they are hidding a criminal, then they are breaking the law. These "journalist" do not write the law, they write for a leftwing rag.

Holtz
JeffersonRepublic.com


18 posted on 06/28/2005 10:12:08 PM PDT by JeffersonRepublic.com (Visit my web site and win ....... nothing! The government took it in taxes.)
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To: neverdem

From old OpinionJournal editorial...one of the best explanations I have seen of the whole episode.

REVIEW & OUTLOOK

Prosecutor of the Times
A partisan "leak" probe boomerangs on the media.

Wednesday, February 23, 2005 12:01 a.m. EST


"After an egregiously long delay, Attorney General John Ashcroft finally did the right thing yesterday when he recused himself from the investigation into who gave the name of a CIA operative to the columnist Robert Novak. Mr. Ashcroft turned the inquiry over to his deputy, who quickly appointed a special counsel."
In the recent annals of press freedom, there are few more regrettable sentences than those two from a December 31, 2003, editorial in the New York Times. The special counsel that the Times was cheering on, Patrick Fitzgerald, is now threatening a Times reporter with jail, and in a way that jeopardizes the entire press corps. This is what happens when liberals let their partisan disdain for a President obscure their interest in larger principles.





The Times was hardly alone, let us hasten to add. Well-nigh every liberal newspaper in the country was calling for Mr. Ashcroft to recuse himself and name a "special counsel," in the hope of nailing the Bush Administration official who had "leaked" the name of CIA analyst Valerie Plame. The idea that there might be some First Amendment equities at stake was overlooked amid the partisan frenzy, and in any case Mr. Novak was expendable because he was a conservative. (See our February 20, 2004, editorial, "The Novak Exception.")
In unleashing the special counsel, however, these media liberals invited an attack on their own practices. Mr. Fitzgerald has since subpoenaed Times reporter Judith Miller, and Time magazine writer Matthew Cooper, to testify before his grand jury about their Administration sources. They have refused, claiming a First Amendment privilege to protect confidential sources. But Mr. Fitzgerald is insisting, and a unanimous federal appeals court recently agreed, that the reporters can be held in contempt of court and jailed if they refuse to comply.

The bitterest irony here is that this case should never have been investigated in the first place. Ms. Plame is the wife of Joseph Wilson, the CIA consultant who wrote a July 2003 op-ed in the Times accusing the Bush Administration of lying about yellow cake uranium ore from Niger. The allegation became a political cause celebre at the time, though a year later both a British and a U.S. Senate Intelligence Committee probe found that the White House had been accurate and that Mr. Wilson was the one who hadn't told the truth.

Meanwhile, amid the uproar, someone told Mr. Novak that Mr. Wilson had been recommended for the Niger project within the CIA by none other than his own wife, Ms. Plame. Mr. Novak duly reported that fact, which nobody noticed until Democrats and the media began to express outrage that a CIA agent had been "outed," and that this was supposedly a crime under the 1982 Intelligence Identities Protection Act.

In fact, it is almost certainly not a crime. That statute was intended to stop the treasonous betrayal of secret agents in the field by the likes of the notorious Philip Agee, and it requires a prosecutor to show that the discloser identified a "covert agent" knowing that the agent had been undercover in a foreign country within the last five years. For an official who had no such knowledge, the law also requires that the prosecutor show a pattern of exposing agents.

It's far-fetched to believe that Mr. Novak's sources were culpable under any of these terms. Ms. Plame was safely ensconced at CIA's Langley headquarters, and if anything her husband was the one who first compromised her when he went public with accusations about the CIA consulting job that she had recommended him for. Once Mr. Wilson made himself part of a political campaign against the Bush Administration and the Iraq War, his wife's role was bound to become public.

A wiser prosecutor than Mr. Fitzgerald might well have come to this same conclusion and shut down the probe. But like so many "special" counsels who have only one case to prosecute, Mr. Fitzgerald seems to believe he'll be a failure if he doesn't charge someone with something. Thus his overzealous pursuit of reporters and their sources.

We are now left with a classic Constitutional showdown between the rights of a prosecutor to investigate an alleged crime and the right of the press to protect its sources. The problem for the media is that while the First Amendment protects the right to publish, this case is about the news-gathering process. And going back to Branzburg v. Hayes in 1972, the Supreme Court has never found a special First Amendment privilege that protects reporters from testifying in criminal cases.

Thirty-one states have passed "shield laws" that protect the reporters of some news organizations to one degree or another. But there is no federal shield law, and ever since Branzburg a kind of rough policy truce has prevailed, thanks to Justice Department guidelines that instruct prosecutors not to pursue reporters and their sources except in the most urgent circumstances. By our reading Mr. Fitzgerald is violating at least one of those guidelines, which is that there should be "reasonable grounds to believe" that "a crime has been committed."

An Attorney General who understands prosecutorial discretion might have restrained Mr. Fitzgerald, but in this case, thanks to relentless lobbying by the Times and other media, Mr. Ashcroft recused himself. That leaves Deputy Attorney General James Comey, who selected Mr. Fitzgerald and is also a career prosecutor who isn't about to second-guess his friend and former peer.

Having lost so decisively with a three-judge panel of the D.C. Circuit Court of Appeals, the Times and Time magazine will ask for an en banc ruling of the entire circuit and then may decide to appeal to the Supreme Court. While that might keep their reporters out of jail, at least for a while, appealing to the current High Court could also end up eliminating whatever hint of protection for sources remains as part of Branzburg.

We are told that the Times detects some silver lining in the concurring opinion of D.C. Circuit Judge David Tatel that claims a "common law privilege" (as opposed to a Constitutional privilege) to protect sources, and therefore it wants to appeal on these grounds to the Supremes. But we think Judge Tatel's opinion is in some ways more dangerous for the press, inviting judges to "balance" the competing claims in a way that would inevitably intrude on news-gathering and publishing decisions. This judicial meddling is the last thing a free press needs.





Some of our media friends are also pushing a federal shield law, and one has been introduced in the House and Senate. A large question, however, is who will be shielded. The Reporters Committee for Freedom of the Press wants to protect not just reporters from established news organizations but everyone who writes anything, which means that almost anyone with a laptop and a Web site could claim to be protected from having to provide grand jury testimony. This Congress will never pass such an expansive shield, and we aren't sure it should.
We sympathize with Ms. Miller and Mr. Cooper, two fine and honorable journalists, but there is no easy way out of their predicament. Unless their lawyers can negotiate some compromise with Mr. Fitzgerald, they may be headed for jail. The prosecutor bears some blame for letting this showdown run out of control, but no more than the editors who let their partisanship trump their principles by inciting this pointless investigation.


http://www.opinionjournal.com/editorial/feature.html?id=110006330




19 posted on 06/28/2005 10:12:43 PM PDT by flixxx
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To: durasell

Loopy transcendentalist slop doesn't age well. Plus, he has inspired countless hyperventilating sophomores to join the therapeutic culture. Betcha Dick Cheney doesn't like Emerson, either.


20 posted on 06/28/2005 10:14:48 PM PDT by Luddite Patent Counsel (Theyre digging through all of your files, stealing back your best ideas.)
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To: Luddite Patent Counsel

The essay, Self-Reliance is a brilliant piece of American writing. You have to judge these guys in the context of their time...


21 posted on 06/28/2005 10:18:44 PM PDT by durasell (Friends are so alarming, My lover's never charming...)
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To: neverdem
The case was about the "outing" of an agent - supposedly covert, but working openly at C.I.A. headquarters - in Robert Novak's column two years ago by unnamed administration officials angry at her husband's prewar Iraq criticism.

And in defending Judith Miller, the NYT has just admitted that their criticism of Bush for the Valerie Plame "scandal" was pure BS.
22 posted on 06/28/2005 10:19:07 PM PDT by Terpfen (New Democrat Party motto: les enfant terribles)
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To: neverdem
I don't know what Miller and Cooper have to do with the Novak's story which revealed Wilson's wife's identity. I don't get it.

Miller and Cooper apparently received unauthorized leaks concerning other classified national security information. This was revealed in the course of the Plame investigation, so the grand jury pursued these other leaks, as well.

Fitzgerald, understandably, would like to identify and prosecute the leaker(s).

23 posted on 06/28/2005 10:20:27 PM PDT by okie01 (The Mainstream Media: IGNORANCE ON PARADE)
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To: OKIEDOC

" Has she ever done anything but criticize and blame America first."

Actually, Judith Miller was instrumental in publishing early stories on WMD. She helped swell public support when it counted.


24 posted on 06/28/2005 10:22:04 PM PDT by BackInBlack ("The act of defending any of the cardinal virtues has today all the exhilaration of a vice.")
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To: durasell
(But I'm not sure of this. Hey, I'm just some guy who reads the paper. Better to do your own research)

I'm not that obsessed with story. I posted it mainly because it's Safire's first column since he retired in January.

25 posted on 06/28/2005 10:26:43 PM PDT by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: okie01

Thank you!


26 posted on 06/28/2005 10:27:28 PM PDT by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: Terpfen
And in defending Judith Miller, the NYT has just admitted that their criticism of Bush for the Valerie Plame "scandal" was pure BS.

You noticed that too. :-)

27 posted on 06/28/2005 10:27:38 PM PDT by mlo
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To: devolve
I'll bet Judith Miller does not get orange-glazed chicken, rice pilaf, 3 veggies, and desert three times a week in jail for 8 months or so for contempt.

What's worse (for her) is that she's going to be forced to listen to the Rush Limbaugh Show 3 hours a day until she gives up the source.

28 posted on 06/28/2005 10:28:23 PM PDT by pawdoggie
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To: neverdem

Same here. Though I do think it's probably/maybe a mistake to through her in the clink for a whole lot of reasons.


29 posted on 06/28/2005 10:29:19 PM PDT by durasell (Friends are so alarming, My lover's never charming...)
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To: durasell

through = throw


30 posted on 06/28/2005 10:29:38 PM PDT by durasell (Friends are so alarming, My lover's never charming...)
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To: neverdem
"What evidence of serious crime does he have that makes the testimony of Judith Miller of The New York Times and Matthew Cooper of Time magazine so urgent? We don't know - eight pages of his contempt demand are secret - but some legal minds think"

So says William Safire, writing under the byline of the New York times.....what rich irony.

31 posted on 06/28/2005 10:35:35 PM PDT by A Citizen Reporter
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To: devolve


FOTFL!


32 posted on 06/28/2005 10:36:37 PM PDT by onyx (Pope John Paul II - May 18, 1920 - April 2, 2005 = SANTO SUBITO!)
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To: pawdoggie


Judith Miller and her "WMD" stories....

During what years?


During what administration?


Defending Bush now on WMD*s?


I don*t know myself - seems like the NYT has gotten quiet "Saddam*s WMDs in Iraq!"


Anyone got any info on this?



33 posted on 06/28/2005 10:37:59 PM PDT by devolve (-------------------------------------------------)
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To: clee1

After all, their title of the "fourth branch of government" is self-bestowed.





Precisely. Their own lofty opinions of themselves are in excess of what their sorry selves deserve.


34 posted on 06/28/2005 10:38:34 PM PDT by onyx (Pope John Paul II - May 18, 1920 - April 2, 2005 = SANTO SUBITO!)
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To: Howlin


THAT is a great link. I missed that posting. Thanks.


35 posted on 06/28/2005 10:39:42 PM PDT by onyx (Pope John Paul II - May 18, 1920 - April 2, 2005 = SANTO SUBITO!)
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To: flixxx

Thanks for the story and link.


36 posted on 06/28/2005 10:41:07 PM PDT by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: HAL9000

"Ambassadors are high-profile people, and it's ridiculous to believe that the wife of an ambassador is immune from public scrutiny. The blame for her public outing rests squarely on her and her lunatic husband, Joseph Wilson."

Very true.


37 posted on 06/28/2005 10:51:25 PM PDT by JeffersonRepublic.com (Visit my web site and win ....... nothing! The government took it in taxes.)
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To: JeffersonRepublic.com

It seems that Time Magazine and its lawyer Ted Olsen (the same as the former Solicitor General?) is ready to offer up the leaker. Perhaps the leaker(s) was as good of as source as Dan Rather gets or perhaps the leaker was more after Bush than Wilson. Who knows what agenda is going on here but there is some reason that two reporters are willing to consider jail rather than give up a name and I doubt it has anything to do with protecting "sources." There is more to this, I'm betting. Does anyone have any bright ideas on this?


38 posted on 06/28/2005 11:56:21 PM PDT by lazlohollyfeld
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To: neverdem

"3. Mr. Novak should finally write the column he owes readers and colleagues perhaps explaining how his two sources - who may have truthfully revealed themselves to investigators - managed to get the prosecutor off his back."

I don't really get this either. I think these other two reports also had this "story" and therefore presumably know the source of this "leak". However, I really,really, really don't understand why they are on the hook and Novak is not. He published the info, they knew it but didn't publish it. It's all very strange and seems a mite unfair to them.


39 posted on 06/29/2005 1:43:44 AM PDT by jocon307 (Can we close the border NOW?)
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To: jocon307
As I understand it, Novak revealed the name of his source to the prosecutor -- after receiving permission from the source to do so.

There's an angle to this story that hasn't been covered very much. One of the two reporters facing jail terms (I believe it was Miller) originally defended herself by claiming that she never spoke to anyone directly -- she had obtained the information about her article from Novak's article. Her story fell apart when it became clear that her article had included some specific pieces of information that hadn't been in his original piece.

40 posted on 06/29/2005 4:09:34 AM PDT by Alberta's Child (I ain't got a dime, but what I got is mine. I ain't rich, but Lord I'm free.)
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To: neverdem
Ok, I found it:

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the right of the press to protect criminals; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

41 posted on 06/29/2005 4:24:20 AM PDT by metesky (This land was your land, this land is MY land; I bought the rights from a town selectman!)
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To: Alberta's Child

"Novak revealed the name of his source to the prosecutor..."

Well, then why isn't the investigation over? What you say makes sense, it is congruent with the article's discussion about a "Martha Stewert prosecution". But if there was a crime committed, wasn't it by the leaker? So, if they know who that person is why hasn't the focus of the investigation turned to him or her?


42 posted on 06/29/2005 4:43:04 AM PDT by jocon307 (Can we close the border NOW?)
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To: neverdem
Safire's subheading is: "Punishing a reporter for a crime that never was."

Boy, you sure wouldn't have known that if you had read only the New York Times before the 2004 election. Thank goodness for the Internet with its blogs and message boards, like FreeRepublic.com, which got the word out.

To paraphrase today's editorial in the Times on President Bush's Speech About Iraq,
"We did not expect Mr. Sulzberger would apologize for the misinformation that helped lead us into this journalistic quagmire, or for the catastrophic mistakes his team made in running their Get-Bush operation."

However, it does strike us as unfair for a single reporter to go to jail, while the seven layers, the minions, of editors who reviewed her work are free to continue to practice journalistic malfeasance to the detriment of (read, chilling effect on) public discourse and general knowledge.
43 posted on 06/29/2005 6:16:18 AM PDT by OESY
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To: jocon307
The person who provided the information to Novak and the two reporters discussed here did not commit a crime -- since Plame was not a covert CIA operative at the time and has not been one for years.

However, that does not mean the reporters are off the hook -- because they refused to cooperate in what was still an active criminal investigation at the time they were called to testify.

44 posted on 06/29/2005 6:31:38 AM PDT by Alberta's Child (I ain't got a dime, but what I got is mine. I ain't rich, but Lord I'm free.)
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To: Alberta's Child

Finally, I think I understand this. Thank!


45 posted on 06/29/2005 7:31:49 AM PDT by jocon307 (Can we close the border NOW?)
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To: neverdem

Reporters DO NOT have to divulge the idenity of their "source" - it has to do with freedom of the press. Get over it and move on.


46 posted on 06/29/2005 7:36:01 AM PDT by sandydipper (Less government is best government!)
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To: neverdem

"I don't know what Miller and Cooper have to do with the Novak's story which revealed Wilson's wife's identity. I don't get it."

I'm with you. There has to be more to it. Why do they have un-named sources? Novak is the source. LOL


47 posted on 06/29/2005 7:47:01 AM PDT by Smartaleck
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To: neverdem

The Times is hoist on their own petard. They lobbied for an independent prosecutor and investigation because they figured it would embarrass the Bush administration.


48 posted on 06/29/2005 7:47:54 AM PDT by wildbill
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To: Howlin; onyx

Re: the Pew poll on the press/media.

How is it you can't turn on the TV these days without hearing about Bush's low poll numbers, the war is going badly according to public opinion......but nothing about the public thinks the media sucks?


49 posted on 06/29/2005 7:50:12 AM PDT by Smartaleck
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To: neverdem

Safire is the type of pantywaist "conservative" that the MSM loves. Like Kristol and Tucker Carlson he can usually be counted on to stage a preemptive retreat when engaged by an America-hating Lib.


50 posted on 06/29/2005 8:04:02 AM PDT by Inwoodian
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