AFTER JUDITH MILLER, A SECOND LOOK AT CONFIDENTIALITY
by Robert Gelfand
American Reporter Correspondent
San Pedro, Calif
LOS ANGELES -- That reporters have some sacred right to shield the identities of their sources is one of those assertions that cries out for reevaluation. It is possible to make a case that certain classes of reportorial activities ought to be deserving of that privilege, but that others, including that of Judith Miller, probably should not.
Judith Miller, working for the New York Times, had conversations in 2003 with someone in the Bush administration on the continuing story about whether or not Iraq had been trying to import uranium ore to build nuclear weapons. Part of that conversation apparently included Miller being told that Valerie Plame was a Central Intelligence Agency officer. Miller went to jail rather than reveal the source of that information.
Miller became a "First Amendment hero," at least to some, at least for a while. Not everybody bought it. Arianna Huffington of huffingtonpost.com has been caustic in her criticism of Miller. Some of this has to do with Miller's reporting on "weapons of mass destruction" for the New York Times prior to the Iraq invasion. Huffington portrayed Miller as an advocate and defender of the Iraq war, as somebody who should have known better on the "wmd" topic, as a bad reporter.
This view was widely seconded among the antiwar left.
Others felt that freedom of the press requires that reporters be able to shield sources. They were willing to defend Miller's later behavior at this level, despite her prewar actions.
This week, New York Times executive editor Bill Keller sent an email to Times staff that takes a slightly defensive position. It upholds the rights of newspapers to be free of government interference, while trashing Judith Miller for not being entirely candid with her editors. Keller accepts some blame on the part of the Times for not dealing adequately with the Plame investigation, or with questions about Iraqi weapons of mass destruction. Keller's email was republished almost instantaneously on huffingtonpost.com, on the Romanesko page at poynter.org and on dozens of blogs. The message seems to be that journalistic privilege should be defended, but that Judith Miller is to be some sort of scapegoat in the dramatic loss of face that the Times is enduring.
It has been quite a quandary for free-speech liberals: Miller was upholding the duty of reporters to shield their informants, but at the same time she was impeding a criminal investigation of high ranking Bush administration officials. It is a scandal that may involve (and ultimately take down) Karl Rove.
Recently, if we can believe reports, Miller revealed the name of her conversational companion to the grand jury. She identified I. Lewis "Scooter" Libby, chief of staff to Vice President Cheney, as her source. This makes one more administration official who may go down in flames.
If we are to believe the explanations Miller gives, she defends her right to protect her sources even now, and only agreed to testify upon receiving permission from Libby directly. To the media critic, the question remains as to whether Judith Miller ever had such a right to remain silent in the face of an ongoing criminal investigation.
This is not to question her decision to go to jail rather than violate her promise to a source. For that act, she is justly to be complimented, as she has upheld the journalistic standards she was trained in. The question is whether the system as it now stands, where reporters have to make promises to sources to gain access, is morally and ethically acceptable. How can newspapers claim the right to be above the law and hold their employees to that standard, knowing full well that it is not consistent with either the Constitution or legal precedent?
Should newspapers adopt different standards, knowing that they will miss some insider testimony but thereby adopt more defensible ethical standards? Should Judith Miller ever have been allowed to promise anonymity to a source, knowing full well that she was being used to manipulate public perceptions about the basis for the Iraq war?
It is a difficult question, morally and ethically. In the eyes of the law, she obviously didn't have the right to protect her source, but we are entitled to consider whether there ought to be such a right as a matter of principle and of law. For example, should Congress (or some future congress) enact a federal shield law for reporters? Would that be the right thing to do?
The problem is this: In having those conversations with Libby, Judith Miller probably was witness to a crime. According to the prevailing legal theory, a criminal act occurred when Libby told Miller the identity of a CIA agent (because there is a federal statute that forbids doing this).
In asserting the right to remain silent, Miller asserts the right to impede a legitimate criminal investigation of that act, and potentially to prevent the effective prosecution of the guilty party.
Those who would assert that reporters have some blanket right to shield sources have their work cut out for them when it comes to this case. For the rest of us, those who lack that moral certainty but are willing to treat with individual examples, it is useful to consider the Miller case. If nothing else, it may serve as a bad example.
Here is one clear distinction we can recognize: In talking to Libby, Miller was not doing investigative journalism about crime. The object was not to reveal criminal conduct to the public through the use of an anonymous, legally compromised source. This was a political conversation. Miller found herself the unwitting participant in what turned out to be a criminal act. She appears to have been not only a witness, but the only witness. Without her testimony, there is no prosecution. There were probably other, similar crimes committed by members of the Bush administration, but on that one day and in that one conversation, there were only two participants, and Miller was one of them.
This was not a Pat O'Brien movie about crusading journalists. Whatever we may think about selfless informants searching out brave reporters to air governmental and corporate dirty laundry, this wasn't like that at all. It is hard to argue that the story Libby told Miller served the public interest in any way.
Quite to the contrary. In retrospect, it is clear that the "outing" of Plame was part of a malicious attempt to intimidate critics of the administration. Plame's husband, Joseph C. Wilson IV, had written an Op Ed column explaining how the Bush administration had misled the public about the Iraq invasion. Wilson was attacked (by outing his wife) in order to show other possible whistleblowers what would happen to them if they tried to undermine Bush administration claims.
It is clear that it was Wilson who was acting in the public interest, and it was Bush administration officials who used the press for their own cynical and cruel purposes.
In this sense, the Miller case offers us an extreme example for the sorts of activities that are not deserving of reportorial shielding. The lack of a worthy public purpose, the misuse of the press to punish worthy selfless acts and the possible criminal activity all argue to the contrary.
The fact that a crime may have taken place is critically important to this question. It introduces another compelling public interest that competes at least in some part with the interest in protecting freedom of expression. The ability of the people through their public prosecutors to investigate and punish crimes is something that is at least equal with the rights of newspapers to publish political gossip. Are we to argue that the duty of prosecutors and grand juries - to investigate and prosecute crime - must be suspended because one of the witnesses happens to be a reporter? The argument is absurd on its face, yet this seems to have been the strategy adopted by the administration. Nobody would defend Libby's right to "out" Valerie Plame to any random member of the public. Why should it be permissible to do the same thing when the recipient is a reporter?
Considered in these ways, the assertion that Miller was ever entitled to shield Libby seems pretty weak. It comes down to an assertion that reporters have absolute authority to shield their sources from public scrutiny, no matter how venal, malicious or even criminal they may be. It exalts reporters above all other citizens, no matter what competing Constitutional interests are involved.
Miller and the Times may argue that they gave their promise of anonymity to Libby, and that to break that promise will compromise the ability of news organizations to investigate in the public interest. The answer to this is simple: Make it clear to potential sources that lies and criminal acts nullify the promise. Make it clear that the promise of anonymity does not extend to political dirty tricks. Under this standard, Libby's words would disqualify him as a protected source.
It's not always wrong or unethical for a newspaper to shield its informants, but the details ought to matter. We might contrast the Miller case with the Watergate investigation. The source known as "Deep Throat," only recently revealed to be former FBI Assistant Director W. Mark Felt, helped Washington Post reporters Bob Woodward and Carl Bernstein to unravel elements of the Watergate burglary story. Felt was not part of a criminal conspiracy, he did not engage in criminal acts by talking to reporters, and his revelations served the public interest by airing governmental misconduct. The protection of Felt's identity by the Washington Post is a far shot from protecting people who themselves engage in misconduct.
Watergate and the Miller case define two extremes, one where protection of an informant's identity is necessary and meritorious, the other where protecting an informant's identity is dubious at best.
Miller's decision to keep her word by going to jail rather than reveal her source was meritorious at one level, but it was heroism in the defense of a system that ought to be changed. The media might usefully reconsider giving blanket grants of anonymity. Potential sources ought to be told up front the limits to their anonymity, and criminal acts should never be included within those limits.