It's put up or shut up time

The Supreme Court today rejected an appeal by journalists in the matter of the leak of Valerie Plame's name and identity as a CIA operative. This puts Matthew Cooper of Time and Judith Miller of the New York Times between a rock and a hard place.

The two journalists have claimed a First Amendment privilege against having to reveal their sources. U.S. Attorney Patrick Fitzgerald has been conducting an independent investigation into the leak, and says that the only missing pieces left in his investigation is the testimony of Cooper and Miller.

A federal judge held the two reporters in contempt of court last fall, and they appealed to the Supreme Court. By rejecting the appeal, Miller and Cooper will now have to testify before the federal grand jury empaneled by Fitzgerald, or face prison terms of up to 18 months.

Some have argued that forcing the two to testify would chill investigative journalism, but I'm not seeing it. Miller and Cooper did no investigating in this matter: they were recipients of an illegal leak from a federal official, who violated U.S. law in revealing Plame's identity. Refusing to name their source constitutes, in my admittedly non-professional opinion, an obstruction of justice. And we're not talking about a whistleblowing crusade against shoddy government oversight, or a deliberate coverup of illegal activities like Watergate here. We're talking about someone blowing the cover of a covert CIA operative for petty partisan politicking.

And that has to be different. Certainly I would expect the administration of Bush the Unready to argue along those lines--at least if they knew anything about consistency. They have long said that September 11 changed everything, and in that changed atmosphere I would have to think they would be furious at anyone who dared to leak the identity of one of our intelligence agents. Had it been a Democratic leaker, I'm sure the preznit and his minions would be howling for his or her head for lo, these two years and more. Since it was one of their own? Crickets.

The smart thing (and the proper thing) for Miller and Cooper to do is to go quietly before the grand jury, give their secret testimony, and then shut the hell up about it. As long as they don't talk about what they said, anybody else who does goes to jail. That's also part of federal law. There is no First Amendment privilege to break the law. That was a specious argument to begin with, and clinging to it now would be foolish in the extreme.

Then again, Judith Miller at least has never demonstrated much of a proclivity toward reason in the past. Why should she be any different now?

Comments

[Steve Bates]

My only question is why Novak isn't facing the same threat. Maybe it's because he has already testified... that sleazebag, faced with prison time, wouldn't give a moment's thought to whether his testimony would or would not be a violation of his journalistic ethics. But given all the secrecy surrounding the investigation, there's always the possibility that someone intervened in Novak's behalf behind the scenes. If the leaker is high enough up in the administration, he may be able to accomplish that, and we'd never be the wiser. Am I reading this the worst way it could be read? yeah, I am; so what? why should I not?

[Michael]

I think Novakula has already squealed...or struck a deal for immunity. But no, he wouldn't have had to think twice about violating his journalistic ethics--largely because he doesn't have any.

[Noah]

Granted, in terms of corruptive scope, as well as the depth of investigation, this doesn't compare so well to Watergate. To suggest, however, that it won't negatively impact the number of potentially vital anonymous sources is really presumptuous.

[Michael]

I have to disagree, Noah. It's not my impression, admittedly not on the basis of an overwhelming amount of information, that "vital anonymous sources" are either coming forth in droves now or likely to be scared off by the rulings in Cooper and Miller.

What we seem to have is a plethora of anonymous flacks--be they from government, the corporate world, or even the media itself--coming forward on "deep background" to do what amounts to little more than spin, and getting treated like they were the functional equivalents of Deep Throat. They aren't revealing corruption or malfeasance, they're carrying water for their bosses as a matter of routine. Modern journalism may have become addicted to them, and relies on them to an admittedly alarming degree. But that doesn't make them noble, and it certainly doesn't mean they should be able to hide behind the shield of the First Amendment--which was designed for precisely the kind of "vital anonymous sources" you're talking about.

What we need is for the members of the modern media to understand the distinction, and to give promises of confidentiality only to people who really need it.

[Noah]

If you could, I'd appreciate a heads-up on
whatever literature informed your perspective. As far as I've learned both from actual news content and analysis, finding any divergence from official party messages in political reporting requires a reliance on anonymous sources. I'd love to read anything that substantively contradicts this impression, however.

Also, I don't see this as a matter of the press' air of nobility, but rather the accessibility and variety of information, which already suffers for the overconcentration on official governmental sources in the media.

[Noah]

Refining the above comment a bit, I didn't mean to suggest that there is an absolute lack of information beyond the talking points of political organizations, but a much less ample body of commentary than is obtained with the veil of anonynmity.