In other Plame news, it appears things might get tougher for Judith Miller:
Lawyers in the CIA leaks investigation are concerned that special prosecutor Patrick J. Fitzgerald may seek criminal contempt charges against New York Times reporter Judith Miller, a rare move that could significantly lengthen her time in jail.
Miller, now in her 10th day in the Alexandria jail, already faces as much as four months of incarceration for civil contempt after refusing to answer questions before a grand jury about confidential conversations she had in reporting a story in the summer of 2003. Fitzgerald and Chief U.S. District Judge Thomas F. Hogan have both raised the possibility in open court that Miller could be charged with criminal contempt if she continues to defy Hogan’s order to cooperate in the investigation of who may have unlawfully leaked the name of undercover CIA operative Valerie Plame to the media.
The unusual threat in the case underscores the sensitivity of an investigation that has reached the highest levels of the White House and the prosecutor’s determination to extract information from reluctant journalists even though he has yet to charge anyone with a crime. What secrets Miller can unlock for Fitzgerald — and the reasons he has so doggedly pursued her — have been a subject of considerable mystery.
My position is slowly morphing from one in which I felt it was wrong regardless the situation that Miller be jailed to one in which I believe Miller should be forced to tell whatshe knows.
d
Yes, but I’m starting to think that Miller is not protecting her sources, but herself.
jcricket
To be fair to Miller (of whom I’m no fan), she’s (through her lawyer) claiming she hasn’t received the same kind of clear waiver that Cooper recently got from his source (Rove). So she’s not protecting herself, but her source. It’s possible her source is someone other than Rove or Libby.
The plot thickens.
Andrew J. Lazarus
I remember a case where an armed robbery suspect ran to his lawyer’s office and the lawyer hid his weapon in his office safe. The courts didn’t find this a case of lawyer/client privilege: to them it looked like accessory after the fact.
When you consider Miller’s role as Chalabi’s embed at the NY Times, the possibility she’s a co-conspirator in immuring us in the IraqWagmire and ruining anyone who wouldn’t go along isn’t far-fetched.
David Janes
As a Canadian, I’m still a little confused: what’s the primary crime, the one that she’s refusing to testify about? It seems more and more unlikely that it’s revealing Plame’s employment status, as it seems likely Plame hasn’t been a undercover since 97 and thus isn’t covered by the relevant laws. Can you just haul someone before a grand jury and ask them anything you want in hopes of discovering a crime?
M. Scott Eiland
Why stop with Miller? Since there’s apparently no requirement that the person actually has written something about Plame, there should be a lot of people with knowledge who should be looking at the Big House unless they cave. It’s pretty clear that her editor at the NYT knows who her source is–why isn’t he or she in the hotseat? Heck, that rich idiot who publishes the NYT–Pinch or Ponch or whatever the hell the moonbat’s name is–probably knows–drag *his* overprivileged ass into the grand jury room and make him sweat.
ppgaz
That statement strikes me as being bizarre. The court has the power to jail Miller, and I am not familiar enough with the relevant case law to opine on that subject. Nor do I know what Miller’s motives are, and therefore I am ignorant of the true nature of whatever choice she is making.
But to say that someone be “forced to tell what she knows?”
I hope you meant that as a figure of speech.
When did America become so insecure that it began to see itself as a place where we’ll stop at nothing to “force” people to talk? The question applies to Miller, and to WOT detainees, in exactly the same way.
Real life is not a season of “24”, folks. Get a fucking grip.
CaseyL
David Janes – Plame’s covert status has not, in fact, been firmly established by anyone. All we know for abso-posi-lutely sure is that she was no longer covert as of the day Novak published his column and disclosed her identity.
The commentators and bloggers who insist she wasn’t covert as of such-and-such a date are blowing empty air.
That’s the Catch-22 of covert agents: they can’t say whether they were or are covert, and no one who’s in a position to know for sure can say, either – because either one would compromise their status.
ppgaz
You have the right to remain silent. Even Timothy McVeigh and Ted Bundy got that consideration.
You have the right to remain silent.
Get it?
M. Scott Eiland
But to say that someone be “forced to tell what she knows?”
I hope you meant that as a figure of speech.
That’s exactly what civil contempt is meant to do–exert coercion on a potential witness to force them to tell what they know (on the assumption that most people find incarceration unpleasant and will comply with the demand of testimony in order to be released). Until recently, Miller could have sat in a cell for the rest of her life (or at least until the grand jury was dissolved) if she did not reveal what she knew. IIRC, the limit for civil contempt cases was lowered to eighteen months a few years back (with the unfortunate side effect that Susan McDougall was allowed to see the light of day after covering for Bubba).
You have the right to remain silent.
Not if you’ve been immunized against prosecution regarding anything that comes up in your testimony. The Fifth Amendment is a right against self-incrimination, not an absolute right to remain silent if self-incrimination is not an issue.
Kimmitt
Yeah, but I’m fairly certain that self-incrimination is not an issue. The problem is that if she invokes the fifth, she becomes a target of investigation…
Phil Smith
Miranda only applies to self-incrimination, I believe.
Phil Smith
The story of my life — day late and a dollar short. Or, in this case, 16 minutes and several dozen well-chosen words.
ppgaz
No, wrong. You have a right to remain silent. It does not come with a get out of jail free card. You might have to sit in jail to exercise that right. That’s a bowl of spaghetti for the courts to deal with.
But my main point was this: You can’t “force” anybody to do anything. And I don’t want to live in a country where that kind of language becomes the standard.
The Plame case is not a tv show where millions die unless Miller talks. It isn’t worthy of the kind of talk that tosses off “forcing people to talk” as if we were just watching a movie.
How far are you willing to go here? Life imprisonment? Execution? Amputation of limbs? Torture? Over a leak?
Don’t answer that I’m carrying the proposal to an unwarranted extreme with my question. “Force” is a word that permits no wiggle room.
So if we are going to use that word, let’s be clear about what we mean. We’re going to jail citizens for life for refusing to play a prosecutorial game?
Not in my America, we’re not. That’s just ridiculous.
M. Scott Eiland
No, wrong. You have a right to remain silent.
If it was a right, one could never be legitimately jailed for exercising it. The law permits one to be jailed for civil contempt if that person has been granted immunity from prosecution and still refuses to testify–period. You may not like that, but it is the law–and until recently, Miller could well have sat in that cell for years if she continued to refuse to talk. As things stand, she’ll be out in a few months, in all likelihood.
ppgaz
If it weren’t a right, it wouldn’t be explained to you while you are being hauled off to jail.
The law may permit jailing for contempt. But you cannot “force” anyone to do anything. The court’s right to jail collides with the citizen’s right to do nothing.
When these are at a standoff, then how far are we willing to go with the pissing contest?
What does “force” really mean?
Clearly, it doesn’t mean “force.” So it must mean something else. When you all are done strutting the lawyer talk, I’d like to know what you think the answer to that question is.
M. Scott Eiland
By your standards, one can never force anyone to do anything–silence unto death is always an option. In the old days under English law, an individual had to consent to a jury trial to be subject to the punishment of forfeiture of their property for the crime they were accused of (assuming conviction, of course). However, if a defendant refused a jury trial, he would be placed under heavy stones, with more being piled on until he either consented to the trial or died from the pressure–in the latter case, his property was preserved for his heirs.
Imprisonment is force, whether you wish to admit it or not. In cases like this, it is as much force as the law is allowed to apply, and I have no problem with that. Now, if you have a real point amidst all your babbling (“right to jail”? What are you smoking?), I’d like to hear it.
Andrew J. Lazarus
Now if only we could take Miller to Gitmo, who knows what useful intel we would learn.
Geek, Esq.
Mr. Eiland is correct. There is a right to avoid self-incrimination, but not a right to “silence.”
This issue frequently becomes an issue where civil and criminal claims arise from the same set of facts.
M. Scott Eiland
This issue frequently becomes an issue where civil and criminal claims arise from the same set of facts.
Which is why–to use a rather notorious example–OJ Simpson was able to avoid testifying in his criminal trial, but was forced to in his civil trial (as double jeopardy protected him from further prosecution for the murders).
ppgaz
Well then, you have taken us right back to two weeks ago.
Forget about journalists, this applies to everybody:
Any conversation you have with anyone about anything is the government’s property, at its whim.
And, just to make sure that there’s no escape valve, apparently we are also saying that there is no limit to the measures government can take to enforce the rule. Life in prison? No problemo.
Why stop there? Imprisonment is expensive. Why should taxpayers be saddled with the enormous costs of imprisonment? Why not apply measures that accelerate the remedy?
Confiscate property. Threaten associates or relatives with prosecution. Feed them gruel. Make them wear their underwear on their heads. What’s the diff?
What am I smoking? What the hell are you smoking?
What are you smoking when you say that imprisonment is force? No, it’s the use of force. It cannot force a result. Nothing can do that.
This is a nutty argument about a nutty topic. To say nothing of the fact that, if everyone else in the subject story were completely forthcoming, there would be no reason for Miller’s information. The only information she can have, short of confession to a crime, is about some other player in the story. She is in jail because other people are telling lies or covering up something.
Apparently the Rule of Blog is that her silence is so great a threat to society that society has the right to permanently take away her freedom for it.
Am I missing anything?
Suppose she is in jail six months from now. How will you “force” her to talk, then?
Play loud music in her cell 24 hours a day, perhaps?
Mike
ppgaz,
Yes, you are missing something important here. There is evidence of a crime which has been committed which Mr. Fitzgerald has obviously convinced several different judges was real, and the courts have clearly told Mr. Cooper and Ms. Cunty Miller that they cannot use the so-called reporters shield to avoid answering questions pursuant to the investigation of this crime.
Don’t get so hysterical. The govt does not own “any” conversation you have with anyone, unless that is there is a crime involved. When you talk to your neighbor about his lawn fertilizer choice, you won’t be forced to reveal it. Well, maybe if it were Rove Brand fertilizer spewed out during this recent period.
Geek, Esq.
If that conversation is evidence for a legal proceeding, absolutely.
If you don’t talk, you’re breaking the law, and subject to criminal sanction.
Or if your neighbor is Timothy McVeigh or Terry Nichols.
And that was a best case scenario for OJ. IIRC, civil cases need not be stayed until after criminal proceedings. If the civil case comes first, the defendant has a choice between self-incrimination and an adverse inference or finding because of his refusal to testify.
CaseyL
How many times can Miller be sentenced to a jail term for contempt? Is there any upper limit, or could she theoretically face life in prison – not all at once, but in repeated sentences for repeatedly refusing to testify? (That’s assuming that each refusal is a new charge, so the defense against double jeopardy wouldn’t apply.)
If so, could Miller at some point move to have her case be heard at trial, and hope a jury would refuse to convict?
Phil Smith
She can be confined on the current issue for as long as the grand jury is seated.
The judge can levy a summary judgement of criminal contempt for, I believe, six months, under Rule 42(a) of Federal Criminal procedure.
She can be tried for criminal contempt under rule 42(b), and sentenced to a longer term, but I can’t find the sentencing guidelines. Findlaw says it’s indefinite. That sounds unlikely.
I am not a lawyer. YMMV.
CaseyL
Thanks, Phil. After I wrote that, I checked in at a few other blogs, and got ore information.
There is civil contempt, for refusing to testify before a GJ. The charge and sentencing are entirely at judicial discretion. Miller is currently in jail on civil contempt charges. She can’t be held for longer than the GJ is in session.
Then there’s criminal contempt, which is more along the lines of obstruction of justice. That involves a trial, and the jail time is measured in years, not months. Fitzgerald’s office is considering whether to pursue criminal contempt charges against Miller, on the grounds that she’s obstructing a criminal investigation by refusing to testify.
I don’t think comparisons to Susan McDougall apply. McDougall did testify, IIRC: she just didn’t say what Starr wanted to hear. Starr threw her in jail for refusing to perjure herself. Miller’s refusing to testify at all.
SInce I generally have a higher opinion of print journalists than I do of the TV variety, I’d like to think Miller’s refusal comes from a deep and unmovable attachment to journalistic ethics (i.e., not revealing a source). But considering how tatty Miller’s other journalistic ethics are (i.e., being a mouthpiece for Achmed Chalabi in particular and Bush Admin propaganda in general), I find that hard to believe.
p.lukasiak
Yes, but I’m starting to think that Miller is not protecting her sources, but herself.
Plame could be protecting “her source”, but not because of what that source told her, but because of what she told the source.
IMHO, Fitzgerald should drag her in front of the grand jury, tell her he is only going to ask her about information she imparted to “her source”, and if she refuses to answer, indict her for criminal contempt. Its one thing to protect a source who tells you a secret, but there can be no privilege for a reporter who tells a source what she knows when the source acts on that information.
TalkLeft
Miranda only applies to custodial interrogations – questions asked by police in a situation where the person being questioned does not feel free to leave – where his or her freedom of movement has been limited.
Also, the remedy for a Miranda violation is not dismissal of charges, but suppression of any statements obtained.