When prosecutors won the right to inspect reporters’ phone records earlier this month—potentially unmasking numerous secret sources—the story barely caused a ripple.
Such a blatant threat to the freedom of the media might once have stirred national outrage, or at least a spirited debate.
But if government intrusion into the media’s rights isn’t receiving the attention it deserves, the press has only itself to blame, with leading outlets like The New York Times weighing in on the subject inconsistently and in a way that seems to be motivated more by political ideology than institutional self-interest.
The recent ruling on phone records was issued by a federal appeals court in New York on Aug. 1. It related to a grand-jury investigation into who told Times reporters that two Islamic charities were going to be the subject of government action in 2001.
Prosecutors contend that phone calls the reporters made seeking comment from the charities tipped off the organizations to forthcoming raids and asset freezes.
One of the reporters was Judith Miller, formerly of The Times. The lead prosecutor in the ongoing case was her “Plamegate” nemesis, Patrick Fitzgerald.
Ms. Miller, reached by The Observer while traveling, responded scornfully to the accusation that she or her colleague tipped off the charities.
“That’s such crap,” she said. “We had to ask them for comment on the story. I don’t know what Fitzgerald knows and what he doesn’t know about journalism, but I presume he knows that much.”
(The other reporter was Philip Shenon, who is still with The Times.)
As for the ruling itself, Ms. Miller said, “I just can’t tell you how ominous this is. If this were to hold, Philip Shenon and Judy Miller and every other investigative reporter is going to have to start acting like a drug dealer, meeting people on street corners and using untraceable cell phones.”
The judgment was the latest big setback for the media. But one of the reasons why the press has failed to effectively resist its adversaries is simple: Its most exalted organs have tied themselves up in knots on the subject of leaks.
The editorial and opinion pages of The Times, in particular, have condemned disclosures that have been helpful to the Bush administration, while defending the broad right of officials to secretly pass on information.
That stance has only served to strengthen the paradigm pushed by the media’s most trenchant critics—that some leaks are morally wrong and thus deserving of punishment.
Two examples stand out. One is the Plame affair, the other the furor in April over the President’s declassification of parts of a prewar National Intelligence Estimate (N.I.E.).
It is increasingly apparent that no crime was committed in the course of Ms. Plame’s identity being revealed. Moreover, the leak exposed a fact of legitimate public interest—that Ms. Plame had played a significant role in sending her husband, Joseph Wilson, on his now-infamous trip to Niger.
Similarly, the partial declassification of the N.I.E. added to public knowledge about a matter of vital importance.
On the question of where responsibility really lay for the erroneous predictions about Iraqi W.M.D., it was germane to know the general tenor of a document that purported to represent the best thinking of the intelligence community.
The October 2002 N.I.E. expressed “high confidence” that “Iraq is continuing, and in some areas expanding, its chemical, biological, nuclear and missile programs.”
The problem with these leaks, for at least some in the media, seemed to be that the information they revealed favored Mr. Bush.
In an October 2003 column about “Plamegate,” Maureen Dowd made the blanket assertion that “The issue is the administration’s credibility, not Joe Wilson’s.”
But if the subject under debate is the White House’s alleged mendacity, why is the honesty—or otherwise—of its accuser not relevant?
In an April editorial during the N.I.E. flap, The Times huffed that “this president has never shown the slightest interest in disclosure, except when it suits his political purposes.”
The same could be said of almost all Mr. Bush’s critics. Yet The Times, like any other media organization, would not (and should not) complain about briefings by the President’s detractors if the details they revealed were true.
The press’ most esteemed outlets have embraced this selective argument and, in so doing, have ceded precious ground to their tormentors.
That ground will not be easily won back. And many reporters will yet have cause to rue the confused rationales offered up by the high priests of their profession.
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