Accuracy in Media has been denied an opportunity to testify at the July 20 Senate hearing on “Reporters’ Privilege Legislation,” otherwise known as a federal media shield law. Senator Arlen Specter, chairman of the Judiciary Committee, has stacked the hearing in favor of the so-called “Free Flow of Information Act,” which we have labeled the “Special Rights for Journalists Act.” The coverage will be focused on the “poor journalists” who have been ordered to do something that all of the rest of us have to do, without the benefit of expensive lawyers―testify about our knowledge of possible criminal activity. Journalists at the hearing will be pleading for special protection from special prosecutors.
Two panels are scheduled. One consists of Deputy Attorney General James Comey, who authorized the special counsel investigation of the CIA leak case. Hopefully, he will provide a straightforward account of why federal prosecutors have the right and obligation to obtain testimony from journalists when they may have evidence of possible criminal activity. But the second panel consists of five people―all of them apparently in favor of “privileges” or special rights for journalists to conceal their sources in criminal cases.
One of the witnesses, Professor Geoffrey Stone of the University of Chicago, has a very interesting perspective on this matter. He favors special protection for the press but he is somewhat critical of press conduct in this case. During a July 7 appearance on Court TV, he said, “It’s funny how the press has changed on this. When the story first broke, there was an outcry about the criminality of the White House and the need for an aggressive investigation. When it turned out the press was part of the investigation, the tune changed. There is no need to uncover the identity of the leaker if the leak isn’t unlawful.”
We’ve noted that change as well. That’s because the New York Times called for the investigation and then decided not to cooperate when its reporter was called to testify. All of a sudden, the Times came to the conclusion that the investigation wasn’t really about anything illegal. How convenient. How hypocritical.
Stone also made the basic point that “the primary reason for the privilege is to protect the source.” This is critical because the “source” in the case of jailed New York Times reporter Judith Miller has given her permission to talk.
Miller has been portrayed by the press as a martyr, but some curious facts about her predicament are starting to emerge in the press, buttressing our long-held contention that there is more to her “principled stand” in favor of protecting sources than meets the eye. A July 16 story by Howard Kurtz and Carol D. Leonnig in the Washington Post noted that the judge in the case “has publicly chided Miller for ‘alleging’ that she was protecting the identity of a source who [Judge Thomas] Hogan said had freed her to speak about their conversations.” Special Counsel Patrick Fitzgerald says that “the source in this case has waived confidentiality in writing.”
Adding more mystery to Miller’s position, the paper said that her attorney, veteran First Amendment lawyer Floyd Abrams, declined to discuss any waivers his client may have received from her sources to testify. Why the stonewalling?
If Stone is correct that the purpose of maintaining confidentiality is to protect the source, and if the source in this case has waived his expectation of confidentiality, then why is Miller refusing to testify?
For its part, the New York Times reports that George Freeman, an assistant general counsel of The New York Times Company, said Miller “has never received what she considers an unambiguous, unequivocal and uncoerced waiver from anyone with whom she may have spoken.” At the same time, Times reporter Adam Liptak reported in a July 16 story that, “Mr. Freeman declined to say what efforts, if any, Ms. Miller and her lawyers have made to obtain a satisfactory waiver.” Isn’t this what journalists would call a cover-up?
So who or what is Miller protecting? And why?
Near the end of his story, Liptak then raised the bombshell issue of whether Miller “provided information about Ms. Wilson’s identity to the source to whom Mr. Fitzgerald referred.” Freeman claimed that “Judy learned about [CIA employee] Valerie Plame from a confidential source or sources whose identity she continues to protect to this day. If the suggestion is that she is covering up for her source or some fictitious source, that is preposterous. Given that she is suffering in jail, it is also mean-spirited.”
But there’s no reason to take what Freeman says at face value, especially when the Times, Miller and her lawyers have failed to satisfactorily explain why she refuses to testify with a waiver from her source or fails to get a better waiver if she thinks the one she has is somehow invalid. A logical and not mean-spirited conclusion has to be that Miller is protecting herself for some reason. It could be that she may be one of many journalistic “sources” who provided information about or identified CIA employee Plame to Bush administration officials and would be embarrassed to have that information come out. So it makes more sense, from her point of view, to remain silent and go to jail.
Remember that Miller has come under savage attack by the political left for writing stories before the Iraq War that were considered too friendly to the administration’s point of view. If it now came out that she was engaged in friendly conversations with Bush officials and that she even initiated discussion of Valerie Plame in those conversations, her reputation might suffer even more. Jail time sounds like a harsh price to pay for avoiding a public relations disaster for the Times, but the paper is extremely concerned about how it comes across to its critics on the far-left. Miller may have been told that she will make up for the hardship by writing a best-seller about her ordeal. You can bet she would be given a big interview on CNN’s “Reliable Sources,” a show hosted by Washington Post media reporter Howard Kurtz.
Before the Congress even considers passing a shield law for journalists, the truth about Miller’s role in this bizarre controversy has to be made known.
One scheduled witness at the Senate hearing, Matt Cooper of Time magazine, has already embarrassed himself, and not just through his last minute deal with the prosecutor to avoid jail time. While Bush official Karl Rove provided Cooper some vague information about Plame, and said she “apparently” worked for the CIA, Cooper admitted on Meet the Press on Sunday that he told Vice President Cheney’s chief of staff, Lewis “Scooter” Libby, that Plame was a CIA operative, not the other way around. When asked, Libby told Cooper that he’d heard that Plame had a role in arranging Wilson’s trip to Africa. Yet Cooper turned this around and reported in his published story that Libby was one of those officials who “noted” to Time that Plame was CIA, as if Libby had initiated the discussion and had deliberately “leaked” the information.
Is this the kind of sloppy and deceptive “journalism” that should be rewarded with special protection by Congress?
Congress should also consider the impact such a law could have on our national security. In the Miller case, her “source” could be a law-breaker, not a whistleblower.
On National Public Radio’s On the Media on July 8, Stone said that the bill, as he understood it, “would provide absolute protection to the identity of a source and qualified protection for other information in the possession of a reporter. So in a situation where a journalist had been told that a bomb will go off in a certain building in three hours, the privilege would not bar the journalist from giving that information to the police, but it would bar the government from demanding that the journalist reveal the source of that information.”
Do we really want to give reporters a federal exemption from providing information in criminal and terrorist cases involving threats to national security and dangers to the welfare and safety of Americans citizens? Should Congress allow the media to “shield” their sources when those sources threaten our lives and our nation?
Press groups are openly lobbying Congress to pass the law. These include the Newspaper Guild, the Society of Professional Journalists, the American Society of Newspaper Editors, and the Newspaper Association of America.
Some fascinating comments have come from Rick Rodriguez, the president of the American Society of Newspaper Editors, who serves as executive editor of the Sacramento Bee. “The public always benefits from the free flow of information,” he says. “It stands to reason if a reporter thinks he or she will be sent to jail every time sensitive or embarrassing information gets out, there will be a chilling effect on the news gathering process.”
Some chills have been in order for his paper. One of his columnists, Diane Griego Erwin, was forced to resign after the paper found that it was unable to verify the existence of 43 people she named in her columns.
The use of anonymous sources would be elevated to protected status in the law through a media shield bill. Can or should the media be trusted with more power? Have they earned our trust?
Washington Post columnist David Broder knows the score. The public “seems largely indifferent to the jailing of one reporter and a prosecutor’s pursuit of several others in the leak of the identity of CIA employee Valerie Plame,” he wrote in his July 17 column.
But some members of Congress, tempted by the prospect of flattering media coverage if they go to the aid of the press in this case, want to proceed with a media shield bill. And they have stacked the July 20 hearing to guarantee favorable media coverage of their effort. This is government and journalism at their worst. The public must let the Congress know they will not accept this charade.