Very few of the journalists rallying behind New York Times reporter Judith Miller seem thrilled about defending her, no matter how strongly they believe in shielding sources. While they may admire her guts in going to jail, their lack of enthusiasm for her case is understandable.
She leaves much to be desired as a martyr for the First Amendment. Based on both past performance and present circumstance, she actually symbolizes a terrible betrayal of the public trust by the national media. And whatever she and her employers think they’re achieving in defiance of the special counsel investigating the Valerie Wilson case, her conduct will inevitably diminish the reputation and power of the press.
Her coverage of Iraq and those still-missing weapons of mass destruction was marked by arrogance, incompetence and eagerness to advance the agenda of the Bush White House. Those seem to be the hallmarks of her current misadventure as well. Having written very bad stories that helped drive the country into war against a nonexistent threat, she is now creating very bad law for press freedom.
Curiously, the sources she is protecting today are the same people who staged the war propaganda, in which she played her notorious starring role.
Indeed, this entire fiasco began around the time that the original war-propaganda campaign began to disintegrate, about three months after the invasion of Iraq proved that the weapons of mass destruction advertised by the Bush administration (and certain pliable journalists) simply didn’t exist. For a time, Ms. Miller pretended to be finding those weapons in Iraq as an “embedded reporter” with a special Army unit, but that series didn’t work out so well either.
Meanwhile, former Ambassador Joseph C. Wilson IV had dared to criticize some of the Bush administration’s fabricated claims about the Iraqi nuclear program. Although they knew he was right, White House officials reacted by attempting to discredit and intimidate him. In their mindless rage, they revealed the identity of his wife, a dedicated C.I.A. officer who had joined the agency in college and worked a dangerous undercover post for years to prevent the proliferation of real nuclear weapons. The cowardly Bush big shots whispered about Ms. Wilson “on double-super-secret background” to various Washington journalists.
At the request of the C.I.A. and the Justice Department—and at the urging of Times editorials as well—the prosecutor is trying to discover whether anyone violated the law by exposing Ms. Wilson, or in the subsequent cover-up by the Bush White House.
While the Fitzgerald investigation has leaked very little over the past 18 months, it is clear that he has already obtained proof of the involvement of White House deputy chief of staff Karl Rove—in direct contradiction of earlier denials by the President’s press secretary. Every judge who has examined the prosecutor’s reasons for summoning Ms. Miller to the grand jury has agreed that Mr. Fitzgerald is investigating serious crimes and needed her evidence.
Evidently, Ms. Miller was among the recipients of the Wilson leak. But she never wrote a story about the Wilsons or the leak campaign, and she has had trouble explaining how the public is served by her refusal to identify the leakers to Mr. Fitzgerald.
What her case has established beyond doubt is that journalists have no right to withhold information from prosecutors under federal law. There are state shield laws, and a federal statute has been introduced in Congress, although whether and with what provisions it might pass remain very uncertain.
What did protect journalists’ sources from untoward prying by the federal authorities, until now, was an informal privilege recognized by the government. By custom, if not by law, federal prosecutors were discouraged from issuing subpoenas to journalists and news organizations. A prosecutor who wanted to haul in a reporter and rifle through her notebooks had to convince his supervisors in Washington that such drastic steps were truly necessary.
Now Ms. Miller may be in danger of indictment for criminal contempt, which would take her bad case across another ominous threshold. Still she insists that she must honor her commitment of confidentiality. To answer the subpoena would undermine the capacity of all journalists to do their jobs, she warns. But source privilege was never intended to protect powerful officials using the media to abuse their power and commit crimes.
It is possible to imagine a case in which the federal government would file an overreaching subpoena, the courts would uphold that mistake, and the resisting journalist would have no honorable choice but to go to prison. It could occur with or without a shield law, which is certain to include exceptions. To commit civil disobedience and flout the rule of law in defense of a higher principle, however, requires a very strict moral standard.
Or as the poet once sang, “To live outside the law, you must be honest.” Unfortunately, the martyr of the moment doesn’t inspire that kind of confidence.