Jewish World Review Oct. 14, 2004 /29 Tishrei 5765
Free press under attack
It's really getting wacky in Washington these days, folks.
New York Times reporter Judith Miller has been sentenced to jail in connection with a story that she reported and researched but, for whatever reason, never got around to publishing.
Earlier, Time magazine correspondent Matt Cooper also was sentenced to jail for refusing to reveal his sources for a story about a story that already had broken elsewhere.
Welcome to the latest outrages that we Americans have to put up with, all in the name of "national security."
On Friday, U.S. District Chief Judge Thomas Hogan sentenced Miller, a New York Times bioterrorism expert, to be held in contempt of court for refusing to divulge her confidential sources to prosecutors investigating the leak of undercover CIA officer Valerie Plame's identity to syndicated columnist Robert Novak.
Hogan, who ordered Miller jailed for up to 18 months unless she agrees to testify about her sources before a grand jury, allowed her to remain free while pursuing an appeal. All of this for a story that she did not write.
By the way, yes, that's the same Plame whose husband, Joseph Wilson, a former diplomat, accused President Bush in a New York Times op-ed piece of relying on bogus intelligence when Bush charged that Saddam Hussein tried to get uranium in Africa.
Wilson's wife is the reason why some people have labeled this widening scandal "Plamegate," although I think the Pacifica Radio Network headline, "Intimigate," hits closer to the point.
That title reflects how Patrick Fitzgerald, the U.S. attorney in Chicago and the special prosecutor who was assigned to investigate the disclosure of Plame's identity, has been aggressively subpoenaing reporters for the identities of their confidential sources connected to the story.
Whether you agree with Novak's column or not, it strikes me as being a legitimate critique of the CIA's doubts about Iraq's supposed weapons of mass destruction, which falls well within the bounds of fair political comment that the framers of the 1st Amendment wanted to protect.
What we do know is that Fitzgerald issued subpoenas to several journalists, including Cooper, a veteran Washington reporter who co-wrote an article that said "some government officials" had revealed Plame's identity to Time magazine. When Cooper refused to appear before a grand jury to reveal his sources for that nugget that Novak had already reported in his column, a judge held Cooper in contempt, ordered him to jail and ordered Time to pay $1,000 a day, all of which were suspended pending appeal.
So far, Novak has refused to say whether he has been subpoenaed, whether he has talked or whether he has refused to talk. Perhaps Fitzgerald's team is circling their way in like buzzards toward Novak.
Or maybe the prosecutors are merely fishin' with this expedition, hoping to use journalists' sources to make their job easier.
That's a troubling prospect. The ideal role for media to perform is not to make either our own lives or those of government officials easier. It is to serve the public interest. After all, freedom of the press extends only as far as the ability of reporters to break important stories without government interference.
Yes, some reporters, particularly in Washington, use anonymous sources too often. But "Intimigate" ironically has snared reporters who apparently showed restraint, withholding the story as well as their sources' identities while Novak ran with it and now they're getting subpoenaed and threatened with jail.
Ever since the U.S. Supreme Court's 1972 Branzburg vs. Hayes decision found that reporters have no special privileges under the 1st Amendment, the U.S. Justice Department has mostly followed the late Justice Lewis Powell's concurring opinion that a privilege of sorts does exist unless the government can show there is no other way except from reporters that it can obtain the information it needs.
Are the feds coming after journalists only as a last resort? Maybe so, although I, for one, find it hard to imagine that they could not have found the information they need through some other less drastic means.
Interestingly, the law that the "leakers" are suspected of violating, the Intelligence Identities Protection Act of 1982, specifically exempts journalists or publications from prosecution for exposing a spy, unless they make a practice out of it. But federal law does not shield journalists from contempt citations for refusing to testify in federal cases, so Miller & Co. are being strong-armed to open up their notebooks.
We have yet to see how much information federal investigators will gain by threatening journalists with jail. It is very easy to see how much we Americans stand to lose.
I know that the media are not always the most popular institution in our society, to put it mildly. But it is not just the rights of reporters that are at stake here. It is the public's right to have a check on government power that only a truly free press can provide.
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