Skip to comments.The Jailing of Judith Miller
Posted on 06/28/2005 9:46:09 PM PDT by 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?"
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 ...
Reporters just don't get it. I do not trust their "unnamed sources." For all I know, the unnamed sources do not exist.
These scoundrels of journalists should be tossed to lions.
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)
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.
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.
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...
Why not ask Novak? It's his story.
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)
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.
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.
You don't like Emerson? What's wrong with Emerson?
I've got no particular sympathy for these two "journalists", but I'll agree that taking this particular case this far has been silly.
"...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.
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.
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.
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