To the klink with Judith Miller:
A federal judge today ordered Judith Miller of The New York Times to be jailed immediately after she again refused to cooperate with a grand jury investigating the disclosure of the identity of a covert C.I.A. operative.
Another reporter who had been facing jail time on the same matter, Matthew Cooper of Time magazine, agreed today to testify to a grand jury about his confidential source on the same matter, thus avoiding jail. Mr. Cooper said he had decided to do so only because his source specifically released him from promises of confidentiality just before today’s hearing.
The judge, Thomas F. Hogan of Federal District Court in Washington, rejected a request by Ms. Miller and her lawyers that she be allowed to serve her detention at home or in Connecticut or elsewhere, and ordered that she be put in custody and taken to a jail in the District of Columbia area until October, or until she changed her mind about testifying.
“There are times when the greater good of our democracy demands an act of conscience,” Arthur Sulzberger Jr., chairman of The New York Times Company and publisher of The New York Times, said in a statement. “Judy has chosen such an act in honoring her promise of confidentiality to her sources. She believes, as do we, that the free flowof information is critical to an informed citizenry.”
Bill Keller, the newspaper’s executive editor, said outside the courthouse that Ms. Miller’s decision to go to jail rather than disclose her source was a “brave and principled choice.”
“This is a chilling conclusion to an ultimately confounding case,” he said.
I really don’t care what the law is or how complicit some say the Times is in creating this situation, I just find it a little disturbing that the government has the power to jail people for not disclosing anonymous sources- particularly when the reporter hasn’t even written (to my knowledge- I may be wrong) a story about the issue.
*** Update ***
The general consensus in the comments is that I am full of shit (no news flash there).
Anderson
They’re reporters, not clergy, however confused they may be on that distinction.
Anonymous whistleblowers will find ways to blow their whistles whatever the state of the law. They may just have to be a little careful or, heavens, take some risks.
Rick
Anderson,
Ah, but some folks regard “journalists” as a type of priesthood, nonetheless. Probably a good deal of overlap with those who regard it as a “profession.”
Cordially…
crampy
can someone please explain to me why the actual person who did write a story and who did reveal a covert CIA operatives name thus breaking the law and commiting treason is not rotting in jail where he belongs?
gratefulcub
The free flow of information can
Nikki
The difference is whoever leaked to Miller is not a whistleblower (definition: One who reveals wrongdoing within an organization to the public or to those in positions of authority). Valerie Plame’s identification as CIA operative in no way fits that definition. Whatever first amendment protections Miller and Cooper were claiming doesn’t fit the definition of protecting a whistleblowing source either. If outing a CIA agent is a crime, then the two are/were complicit in covering up a crime. Journalists know this, but everyone seems to want to pretend that this is about protecting whistleblowers. Why protect confidential sources who are committing crimes?
KC
Pure speculation, but I wonder if Miller was working as a WH operative on this one (after all, she carried a lot of water in the pre-war WMD coverage)? She provides the cover for the leak, i.e. she gives Rove (or whoever) the name and identity then they leak it to Novak. As I said, pure speculation.
p.lukasiak
Miller wasn’t a reporter, she was a witness to a crime.
The purpose of journalistic privilege is to protect sources from retaliation by their superiors for disclosing information that the superiors don’t want disclosed. What Miller is involved in has nothing to do with any of that.
In reality, Miller is protecting her own access to upper level White House officials that she is chummy with, and with whom Miller has a symbiotic relationship with (Senior officials give her “scoops”, and she prints what they say verbatim, as if the “scoops” themselves were insider news rather than pure spin designed to influence public perception of the Bush regime in a positive fashion.)
Miller is a media whore — and as long as prostitution remains illegal in (most of) this country, she belongs in jail with the rest of the whores.
John Cole
Mikki- Has a crime even been committed?
gratefulcub
Somebody, somewhere committed a crime. Her name and job were disclosed. Someone, somewhere in the government committed a crime. But, was their source committing a crime when he talked to them?
Clever
I think Nikki pretty much hits it on the head here.
[Begin hypothetical clarification]
If I, as a ‘journalist’, am told by a bank robber the details of their latest bank heist, am I bound by ‘journalistic integrity’ to protect them as a source? Do whistleblowing protections apply to the bank robber, as he is the source as well as the crime?
[End hypothetical clarification]
gratefulcub
If you are a journalist that deals with bank robbers, and the inside story of bank robbing is essential to the free flow of important information for society
Bruce
So John is baffled by the concept of ‘Contempt of Court’ for refusing to answer questions. Why should I be surprised.
I beleive the court is attempting to determine whether a crime has been commited. One aspect of the crime is intent; if there was no intent to do harm then there was no crime. But this is critical and must be determined; of course that is what courts do. Courts hold hearings to determine guilt. Refusing to comply with a court order is willful comtempt. Off to jail. Why is that so puzzling to any one?
Tim F
Has a crime even been committed?
If the CIA did not believe that a crime had committed then they would not have remanded the case to the DOJ in the first place. Valerie Plame’s employer is in a better position to judge whether blowing her cover violated the Intelligence Identities Protection Act than either you or I.
gratefulcub
Bruce,
I get that the law is clear. I just don
KC
Even if a crime wasn’t committed, I think a pretty dirty trick was pulled indeed. If someone in the Clinton WH had done the same thing, I’ll bet they would have been fired by now since the acrimonies of the right would have been so fierce.
BJ Chavez
Another note: Miller is being jailed, not for refusing to reveal her sources, but for refusal to testify before a grand jury, which, any lawyer(such as myself) will tell you, is a big no-no. The grand jury can’t divulge anything said there, so, unless you have a reason to plead the 5th, a material witness to a potential crime cannot refuse to testify to the GJ. If they could, well, the entire purpose of a GJ would be for nothing.
The reason Novak isn’t being jailed for revealing his sources is probably that he took the 5th, and the special prosecutor isn’t inclined to immunize him to compel testimony. Which means that the prosecutor has every intention of going after him.
hot air
Has a crime even been committed?
Forget abt the Leak scenario for a second.
The Grand Jury has SUBPOENAED the information from Judith Miller. She has refused to comply. That action is a breach of law and, thus, a jailable offense.
The fact that she is willing to risk breaking the law to protect her source only adds to the signifigance of the source itself. If she was counciled by the Bush Admin that she MAY NOT divulge her source, then surely the leaker is a higher-up member of the admin.
Basically, IMHO, Miller is going to jail for the Bush Admin, but Rove, et al, are not safe anymore. And if she goes to jail for this AND the leaker is exposed then it’s two-for-the-price-of-one. She is guilty, imho, of lying to her readers on the WMD issue, not a jailable offense, but one that I would like to see her punished for….
John Cole
Which would be worse- refusing flat-out to testify before the grand jury, or going before the grand jury and refusing to answer specific questions?
Tim F
Which would be worse- refusing flat-out to testify before the grand jury, or going before the grand jury and refusing to answer specific questions?
That’s like asking which is worse, a wedgie or a swirlie. She could also theoretically agree te testify, wait for the Grand Jury to sit down, shout, SIKE! and leave by a window, it would get her just as jailed.
John Cole
I don’t know where the hell you went to high school, but I will take a wedgie over being partially drowned in a swirling pool of urine pretty much every day of the week.
Anderson
Rick, I’m a member of a profession–an attorney. If I were subpoenaed to testify to a matter covered, in my view, by attorney-client privilege, I would appeal it to the highest court possible.
And if I lost that final appeal, I would testify–because I would have been shown to be wrong about what the law was.
I’m not averse to “higher law” arguments, when it’s a matter of life & death, but not in the present case. And as Calvin & Hobbes so memorably put it, “even if lives did hang in the balance, it would depend on whose they were.”
wufnik
Anderson is right. It’s like that great exchange between William Holden and Ernest Borgnine in The Wild Bunch: “He gave his word.” “That ain’t what counts–it’s who you give it to.”
ppgaz
What counts is what the available body of case law says about reporters and sources. The law tends to change ponderously in application. Without knowing the case law here, I’d have to guess that the outcome was predictable. Therefore, Miller knew when she promised anonymity to her source that she could be jailed for contempt if ordered by a court to reveal that source. Therefore, her situation is rather clear: She’s made the choice to accept jail as a matter of her own principle. I have no quarrel with her choice, and I think that calling her names for making that difficult choice should be reason enough for anyone who posts here to be banned for life under the Asshole Clause. Miller is the one in jail, she’s the one who took the risk and opted to put on the jail suit. I cannot find fault with someone risking jail to do what they think is right, even if I don’t agree with them. It’s their choice, not mine.
Meanwhile this whole case smacks of a big contest about who has the biggest dick. People using their power to fuck over other people. Whoopee! I’m glad they are keeping America strong, and free. We can all be proud today. Now if we can just get the Justice Department to cover up those marble tits, again, we could make it a really banner day for America.
BJ Chavez
Well, theoretically, it’s worse to flat out refuse to talk to the GJ, but either one would get you jailed as quickly. What laypeople don’t realize is that you essentially(and this has always been the case) have no rights before a GJ, beyond self-incrimination. Sucks, yes, but the reasoning is that there is no jeopardy before a GJ….jeopardy attaches at arraignment. A GJ is only convened to determine if a crime has potentially been committed(which is a very low standard of evidence), and therefore if somebody refuses to talk to the GJ, well, off to jail with them. Prosecutor asks an objectionable question at a GJ? So noted, we’ll strike later. Answer it now. Breach of privilege? So noted, we’ll strike later. Answer it now.
Such is the way of the GJ. Always been the case. Nothing new here. This has nothing to do with her refusing to reveal sources. Well, almost nothing.
Nikki
If Cooper and Miller’s source (who is NOT a whistleblower) is deserving of first amendment protection, does this mean that every journalist’s anonymous source is to be protected? That there is no circumstance in heaven or hell where a journalist can and/or should be compelled to reveal a source?
Dear Abby received a letter from a man who claimed to be having lustful thoughts for his nubile stepdaughter and asking her how he could fight these feelings. She turned him in to the cops. Was he not deserving of protection?
Ok, that was probably not the best example. But what if a reporter writes a story about this same man, only the man is already molesting his stepdaughter. Can/should the courts compel the journalist to reveal the man’s name?
ppgaz
Well the Grand Jury is a tactic, not a strategy.
What’s the strategy here? Okay, all reporters, listen up. You can be called before a Grand Jury at any time to testify about anything anyone told you, any time, any where. Whether you report it, or not. Whether you even understood the significance of what you were being told.
How is that materially different from: Okay, all reporters, listen up. All conversations you have with anybody are the property of the government. At our whim, of course.
Am I missing anything? Keep in mind, I’ve had a long day so go easy, if you would.
BJ Chavez
It’s different in that a GJ can only be convened to determine whether a felony has taken place. A prosecutor convening the GJ had better have enough evidence to support calling it in the first place, or face sanctions. Most states don’t even have GJ’s, so it’s mostly used for federal crimes. There are limits…just not many once it actually gets convened.
ppgaz
Ah, then the process hinges on the integrity and restraint of prosecutors. Well, I feel much better now.
I’ve worked in and around the criminal justice system for a long time. Let me see if I can find examples of sactions against prosecutors. I’ve never heard of any, but what do I know? We have grand juries here in Arizona. Perpetually in session. Watching over our freedoms, night and day.
According to this site, “only two states don’t use grand juries.”
Grand jury inquiry
Jon H
“The reason Novak isn’t being jailed for revealing his sources is probably that he took the 5th, and the special prosecutor isn’t inclined to immunize him to compel testimony. Which means that the prosecutor has every intention of going after him.”
This is incorrect. The law in question does not cover the journalist or publisher, unless there is a pattern of outing agents.
Novak broke no law in receiving the information, or in writing his story.
Novak’s source broke the law, in passing the information to Novak.
Thus, Novak has no need to plead the 5th.
The fact that he’s not sitting in a cell means that either he talked, or he wasn’t asked yet.
Bob
This has been a wonderful thread.
Still, the instant case is about the worst test for any shield law. Instead of giving the public access to information that the government wants to conceal, at least if rumors prove true, this is the seat of greatest political power in the country using the shield law to punish a whistleblower through harming his wife.
I also wonder about how Miller gave her word to her anonymous source? Surely, if (let’s pretend this is what happened) Rove extracted a promise and then revealed Plame’s identity and CIA role, wouldn’t Miller have immediately realized that Rove giving the information was a crime? Wouldn’t she immediately have perceived Rove’s game? And if so, doesn’t her silence make her an accessory?
Another absurd example: If after Miller had crossed her heart and hoped to die Rove told her that he had tampered with the brake lines on Valerie Plame’s car, how would the shield law protect her?
narciso
the Russians and the DGI had her name as far back as 1994, and 1995; and the likelyhood that information stayed in
Russia is slim and none. Miller, shouldn’t go to jail, she didn’t even right the story, for godsakes; what happened
to Massimo Calabresi; he cowrote the Time piece, which had much more influence than Novak’s; is it because he is a Italian national; that he gets off scott free
BJ Chavez
Sigh. I wrote a long post responding to points above, and then Firefox crashed. More stable my ass.
Anyways, to sum up–I misspoke when I said most states don’t use GJ’s anymore. What I should have said is that while most states have GJ’s, they’re not nearly as prevelant as they are in the federal system.
Also, though don’t quote me on this, I believe the law could also potentially cover Novak if he knew what he was writing and did it knowing he was outing an agent. Therefore, the scenario of him taking the 5th is entirely plausible(I believe Slate wrote about this possiblity first), especially in light of how fiercly the prosecutor is pursuing Miller, which seems to indicate that he can’t get the info elsewhere. Says to me that Novak was a dead end, for whatever reason, and the best reason I can think of is the 5th. Of course, there are other palusible scenarios, including that he did talk, but the 5th amendment scenario just seems far more eloquent. My opinion only though.