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Defending Miller's Indefensible Choice

Her supporters point to principles her silence undermines

No reasonable person believes that a journalist's right to protect their confidential sources is absolute. Yet one is virtually required to act as though it is, and any exception to this right will have a devastating effect on investigative journalism, in order to justify New York Times reporter Judith Miller's non-cooperation with the special prosecutor investigating the Valerie Plame Wilson leak.

That journalists' privilege cannot be absolute is easy to demonstrate: If after obtaining a promise of strict confidentiality, Karl Rove had told Time's Matthew Cooper that he was a serial killer planning to strike again, who would argue that Cooper should not immediately go to the police--let alone defy a subpoena from a grand jury seeking evidence of Rove's crimes?

To argue that such defiance is appropriate when the crime involved is less serious than murder, then, one has to establish that in the particular case at hand, the principle of protecting confidential sources outweighs the public interest in prosecuting lawbreakers. Certainly there are times that it does: The public interest in learning about government wrongdoing is often more important than the government's legal right to protect its secrets.

In those cases, reporters are fully justified in concealing their sources--even in committing civil disobedience to do so. But such a step requires justification: If someone breaks the law by giving information to a journalist, or reveals to a journalist that they have committed a crime, the journalist has to be able to argue that in that specific case, protecting the source's identity serves the public more than bringing the source to trial.

It can't be justified by the claim that one must never break any promise of confidentiality whatsoever, because such an absolutist claim would be absurd. Even the New York Times editorial page, stalwart in its defense of Miller, conceded (7/7/05) that "responsible journalists recognize that press freedoms are not absolute and must be exercised responsibly." But the editorial never explained why, if there are some claims of journalistic privilege that are not justifiable, this case is one of the justifiable ones. Instead it merely suggested that any failure whatsoever to honor a promise of confidentiality would make it "immeasurably harder in the future to persuade a frightened government employee to talk about malfeasance in high places, or a worried worker to reveal corporate crimes"--and asserted that Miller has "acted in the great tradition of civil disobedience" that includes the Underground Railroad, Martin Luther King Jr. and Rosa Parks.

Few if any of Miller's defenders--who include many usually clearsighted pundits and media activists--are willing to argue that her refusal to cooperate with the prosecutor in itself serves the public interest. This is unsurprising, because the prevailing assumption is that Miller is protecting an official who outed Wilson as a CIA operative after Wilson's husband Joseph wrote an op-ed about the Bush administration's WMD deceptions. It's hard to argue that it helps the public when powerful government officials punish whistleblowers by exposing classified information. So to defend her decision to remain silent, her advocates are forced to treat protection of source confidentiality as though it were an absolute principle that journalists can never compromise without terrible results--even though many of these defenders acknowledge that confidentiality cannot be absolute, and nearly all of them would do so if pressed.

Thus Salon (7/13/05), defending its pro-Miller coverage against a slew of angry letters, wrote: "Compelling a reporter to reveal his or her sources to the police turns that reporter into a police agent, and that's not acceptable, even in unsavory circumstances like these.... If journalists can only receive confidential information from the saintly and the pure of heart, the entire enterprise might as well become The View." Salon's Andrew O'Hehir went on to say that "Even if you believe that Judith Miller is nothing more than...'a co-conspirator in a government cover-up,'" as one letter to the online magazine asserted, "she's still entitled to the same constitutional protections as Greg Palast and Amy Goodman."

Really? While obviously the same Constitution applies to everyone, people actively engaged in criminal enterprises (which is what a "co-conspirator" is) generally look more to the 5th Amendment than to the 1st Amendment for protection.

The New York Times' Frank Rich (7/10/05) declared the Plame scandal "worse than Watergate," and his explanation for why this is so began with the fact that because "my colleague Judy Miller has been taken away in shackles for refusing to name the source for a story she never wrote. No reporter went to jail during Watergate. No news organization buckled like Time."

He went on to add, as another and weightier reason, that in contrast with today, "No one instigated a war on phony premises." The comment ignored the fact that President Richard Nixon's administration lied constantly about the incredibly bloody war in Indochina, including the secret bombing of Cambodia, an action that the House Judiciary Committee considered (but did not adopt) as one of its proposed articles of impeachment against Nixon in 1974. But it's telling that Rich attempted to tie together the deceptions used to justify the Iraq War, of which the outing of Valerie Wilson was a part, with the special prosecutor's attempts to discover who exposed her. If Wilson's exposure was part of a crime "worse than Watergate," don't reporters have an ethical (not to mention legal) obligation to cooperate with efforts to find out who is responsible for that crime?

Recognizing the difficulty of justifying Miller's withholding on its own merits, Rich evoked the general principle: "Should a journalist protect a sleazy, possibly even criminal, source? Yes, sometimes, if the public is to get news of wrongdoing." True enough--but Rich made no effort to establish that this is one of those times. That's understandable, given that Miller's choice seems to be keeping news of wrongdoing from the public.

Sydney Schanberg, a New York Times veteran now writing for the Village Voice (7/12/05), called Miller's stance "honorable civil disobedience. In this reporter's view, more such resistance is needed at a time when an increasingly imperial presidency is trying to tar and diminish the notion of a free and independent press." But how is Miller resisting such tarring by refusing to disclose the very hand that holds the tar brush?

Schanberg caricatured the views of those who see no public good served by the protection of Wilson's exposers:

"Some commentators have argued that reporters should only promise confidentiality to altruists, people who don't have an agenda. In other words, only to good guys--not to bad guys with impure motives. This too is nonsense. Virtually every leaker has an agenda. What should a reporter do if an attorney representing an alleged felon wants to pass you evidence-anonymously-about prosecutorial abuse in the case? Do you blow him off, refuse his information? Isn't it the press's obligation to report abuses in the justice system, whoever commits them?"

Yes, it is the press's job to report government abuses. Sometimes that means granting anonymity to sources. When those sources are themselves the ones carrying out government abuses--as seems to be the situation in the Wilson case, and, frankly, in much of Miller's reporting (see Extra!, 7-8/05)--then anonymity serves no such purpose.

Wrote Schanberg: "The question the public has to decide is whether or not it wants investigative journalism--serious journalism that exposes corruption in high places." The public not only wants but needs such journalism. But how does protecting an official's potentially illegal retaliation against a whistleblower further the cause of exposing corruption? Why is it not, instead, an instance of the press facilitating corruption and discouraging its exposure?

Robert Kuttner, editor of the American Prospect, has been sharply critical of the special prosecutor's efforts to force Miller to testify. In the July 13 Boston Globe, however, he wrote a soul-searching apology, saying that the line he and others had been taking on the case was profoundly misguided:

"In the Alice in Wonderland world of the Plame-Rove story, Judith Miller, who worked hand in glove with the Bush administration to publish bogus stories about Saddam Hussein's alleged nuclear program, is a hero -- for going to jail to protect, once again, her friends in the administration. And Time-Warner, which turned over Matt Cooper's notes (for the wrong reasons -- Time-Warner's corporate interests -- but that's another story) is the villain. Yet it may be Cooper's testimony that finally sinks Rove. So who's the hero and what's the public interest?...

"It's one thing for reporters to protect a brave whistle-blower who has taken personal risks to serve the public interest. It is another thing for reporters to collude with the powerful to punish the whistle-blower, in this case Joseph Wilson, and his wife, an innocent bystander.

"Is the public good served by helping Fitzgerald learn who at the White House broke the law? Or is it served by having reporters protect Karl Rove? We need a public interest test, not an absolute privilege."

Kuttner's willingness to rethink his instinctual reaction to a case that brings up profound emotions for journalists is commendable. It's to be hoped that others putting forth a blanket defense of Miller's refusal to provide testimony will do some similar reevaluation.

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Bush: Any Criminals in Leak to Be Fired
AP - 51 minutes ago
WASHINGTON - President Bush said Monday that if anyone on his staff committed a crime in the CIA-leak case, that person will "no longer work in my administration." At the same time, Bush yet again sidestepped a question on the role of his top political adviser, Karl Rove, in the matter. "We have a serious ongoing investigation here and it's being played out in the press," Bush said at an East Room news conference.


Did you catch that the statement has been changed to include the phrase "Committed a crime"? I don't think that's quite what they said 2 years ago...

Ah, that's right, he said previously: "...anyone who was involved would be fired"; there's your spin for today!

Hasn't it been made perfectly clear by now (and by his own admission) that Rove was involved?

Interesting...glad you pointed out the slight change in rhetoric.


The president must think were all stupid out here and not competent enough to keep track of what he says and when. Or perhaps the shortcomming is in the president's ability in his own mental capacity. Another point is to note that whom ever is advising the president (rove?) isn't keeping track. Their not very skillfull liars. to lie effectively, and leave no trail, does take skill.

If a murderer gives you information, it is your moral duty as a journalist to report that person, if not, you are aiding and abetting. The media and other so called reporters are telling us that this "is a sad day for journalists", no it's not. More than 1800 Americans have died and god knows the current count of Iraqans killed. Would you still protect your source, knowing that you are helping to keep these murderers on the street and EVERYDAY knowing that americans are dying?

Also do people know that Judith Miller was one of the people who was sent "white powder" at the New York Times? Did you also know that Judy wrote MANY articles for the New York Times supporting for America to go to war? I'm not a journalist nor lawyer, but if Judith admits that her sources was from the Bush camp, yet she continued to write articles supporting war because of "Weapons of Mass Destruction" then people will start speculating that something is fishy, and she knew more than what she claimed to know. For example, is this perfect timing or what... Judith released a book called "Germs", and what a coincedence, it made it to the Oprah show 6 days after 9/11 - here is a link to Oprah's website -the date is in the link:

Now, as a journalist, do you think she might know a little bit more information about the Anthrax scare, pre war info and/or even more information than just about Karl Rove ratting out Plame's wife? Or was that pure luck for her to have her book lined up and ready to promote right after 9-11?

Here you go, a link to Judy's Bio:

It is all very well to give examples where reporters should call the cops, the activists other reporters and use that as a reason Judith Miller should have coughed up. But sorry folks anonymity IS close to sacrosanct. Speaking as someone who has worked as a reporter for many many years protecting your sources is absolutely essential, even if they are lying skeezebags. IF WHISTLEBLOWERS DO NOT BELIEVE THEY WILL BE PROTECTED THEY WILL NOT COME FORWARD. Yes there are all sorts of scenarios where that is problematic, including J. Miller where she may be protecting her source and herself. But IF WHISTLEBLOWERS DO NOT BELIEVE THEY WILL BE PROTECTED THEY WILL NOT COME FORWARD.
Sorry to belabor that but civilians/non reporters frequently do not comprehend how important that principle is for a free press. We have already seen one major story that has been spiked due to concerns about the provenance of the information: i.e. it may not have been legally obtained. If it is an important story does that mean simply becuase the information was acquired in dubious legality that it should not be run? Sorry I don't buy that.
To say a reporter is only as good as their sources is pushing it about, but there is truth to that. And if sources dry up, as many have done so (some are saying they will never talk to Time again, and they are right to worry), then there are alot of important stories that will not get told.
Just becuase in this case folks don't like Miller, it should not mean they abandon the principle of protecting sources.

Tim Kingston

Yes, that's true that whistleblowers may not be quick to come forward if they don't think they'll be protected. But it seems that reporters are ALWAYS using that particular example as a blanket excuse. That same logic allows reporters to make up stories about anything they want, then hide behind the 'anonymity' clause, and they don't have to show any proof whatsoever. There's no easy answer, but something in the law needs to be changed..

We're talking a breach of national security. You bet she should be talking. There are many scenarios where it could mean "too little, too late" if the reporter didn't talk.

That newspaper in Ohio that is withholding a story because of this is just blowing wind............... They are using this as an excuse to write a story that they really didn't want to publish to begin with.

When it comes to Miller, well I hope they extend this grand jury and she stays a little longer. I have nothing but comtempt for people that put politics ahead of national security.

So she profits from this war, she help pushed the war propaganda and we should side with her?

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