https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2007-01-09 12:54:002007-01-09 12:54:00Covering the New Secrecy
QuickSilver says:
They basically cried wolf for two years, then realized they were the ones harboring a wolf in their own henhouse.
Obviously they realized it long before Miller disgraced herself… I’m still amused by Abramson’s statement about what she regretted about the Miller saga. â€Everything,†she said. Which was a wonderful way to avoid the question of what she (and Lelyveld) really knew.
There is a reason Miller was pulled off of her bogus WMD reporting and called back from Iraq. She was effectively muzzled well before her entanglement with Libby and the Plame case. The Times still has a lot to answer for on that one: why have all those editorials calling her a â€First Amendment martyr†been allowed to stand? The Times has never deigned to report the obvious fact that Miller blew lies in her first grand jury appearance, and was forced to cough up a notebook from her prior, undisclosed June 23rd meeting with Libby. Do the terms of Miller’s severance agreement dictate the paper’s reticence about her role?
lizard says:
Why does there never seem to be talk about regulating by statute what kinds of information MAY be classified? A Journalists shield law is a laudable goal, but it will not fix the current secrecy fetish. It will, of course, allow more secrets to be reported and reduce the peril inherent in reporting them, thereby effectively limiting secrecy, but it seems to me that the net result will be an increase in the use of journalists as political tools. Could there not be a statutory fix here?
katie Jensen says:
I hope that the universities and high schools of this country will soon be able to refer to the reporting on this situation as an example of the importance of the checks and balances of democracy. When Reagan began bashing the press years ago for being â€too liberalâ€, the damage began that would finally hurt our country today. What Reagan really argued for was that corporate interests be represented in the media. And prior to the Bush administration, large corporations could not own or control the media.
It was Reagan’s constant whine about the lack of representation that made the argument fit. It worked so well for the republicans that it was used and reiterated over and over again. And like a verbally abused child the nation finally believed what it was told. And then I feel, the media wanted to â€prove†that is was not â€liberal†and that â€corporate ownership†would increase nationalism and unity. They thought it would prevent the travesty of vietnam which the neocons blamed on an ignorant lack of support by the nation, in part due to the hostile press.
Instead, the people in this nation have been stripped of our power. The people know that this administration is not representing our interests. Somehow the American people have seen through the lousy reporting and corporate propaganda. It didn’t work. Some say that God works through the majority. The majority did not choose this president. Not from day one. And there is nothing that any of us can do to change the fact that democracy works and that it did not make it â€right†or â€good†or â€effective†to allow the â€elite†to make our choices for us.
Most corporations run more like a kingdom than a democracy. America has so many lessons to learn from the Bush Administration but it will take years to sort it out. Regardless this administration if it doesn’t destroy our country COULD make our country stronger. It all depends on how we choose to interact with the realities of this administration.
Anonymous says:
lizard
Agree. That’s one of the reasons I was pleased with the near-unanimity that the issue right now is Cheney’s attempt to assert the Unitary Executive. I think it gets to issues of the real conflict more quickly than anything else.
jwp says:
New statute. I think that it should be illegal to classify a felony, and an absolute defense to prosecution that you disclosed a felony.
Jeff says:
That’s because one central goal of this conference was to get citizens lobbying for a journalist shield law. But that all comes back to the point of my question: to what degree did the NYT, and the press in general, lose credibility with their shilling on the Iraq War? Why did the NYT stake its journalist shield campaign on a flawed case (one which would almost certainly have never been affected by a shield law in any case)? They basically cried wolf for two years, then realized they were the ones harboring a wolf in their own henhouse. And even with Abramson’s hair shirt apologies, it’s hard to undo the damage that comes from fighting the wrong battle.
As you know, I disagree. These are distinct questions from the question of whether there should be a federal shield law. And it’s sort of punting to put these things this way. The NYT and the press in general lost credibility with their shilling on the Iraq War. But why not participate in undoing the damage by supporting a shield law, among other things? If you don’t, frankly you participate in enabling the Bush administration to use the lack of confidence in the press to go after journalists doing all manner of good and democratically crucial work.
Anonymous says:
I DO support a shield law (though I would call it a reporting shield, not a journalist shield). I also support establishing a clearer precedent than Branzburg (sp?), which I think BALCO might get us–might. My point is just that everytime the press tries to enshrine their own status–as opposed to their function (and at the same time perform that function poorly)–it makes the possibility that a shield will achieve its desired objective less likely.
Jeff says:
Ok, I missed the status-function distinction, which seems sensible to me. I thought the point was partly to blame the press for the lack of support for journalistic protections, which is partly true but which plays into the hands of some more worse actors.
Pete says:
We classify way, way too many things.
Here is a gem from a recent report: Despite the intense amount of interest it’s likely to generate, it’s not clear whether any of the Iraq NIE will be made public.
to what degree did the NYT, and the press in general, lose credibility with their shilling on the Iraq War?
the New York Times lost ALL of it’s credibility with me
the aluminum tubes did the job of destroying any credibility the NY Times might have had
if I can figure out that aluminum tubes 88 millimeters in diameter are most likely to be used as MISSILES, and the NY Times can’t figure that out, then the NY Times has a collective problem with their level of inteligence, or they’re shilling a lie for a reason
Knight-Ridder reported that the National Atomic Energy Agency reported that the tubes were totally unsuitable for uranium enrichment, and the dimentions of the tubes were consistent with the size of Iraqi missile launching systems
the intended use of the tubes was a â€No Brainerâ€, yet the NY Times printed the condiliar’s quotes as if they were true
when a newspaper prints obvious lies as fact, without any questioning of the lies, I have a tendency to boycott that newspaper
I haven’t given the NY Times a single cent since then
Jeff says:
freepatriot
I just want to note that it’s completely inconsistent to at once have an exceptionally harsh condemnation of Judith Miller and such a sweeping condemnation of the Times just as such. Why can’t the criticism be, Miller did some really terrible reporting, in very identifiable ways and for pretty comprehensible reasons, and it was a massive failure by the New York Times to publish it the way they did, again for reasons that can be understood and condemned; but at the same time, the Times also has had some reporters who have done some really outstanding reporting, who avoid precisely the inexcusable mistakes and errors Miller made, and the Times overall remains a flawed but utterly indispensable institution in our democratic politics, an institution that constantly needs to be pushed to improve itself, but which does important work here and now and whose loss would be much worse than its present flaws, which show no signs of being utterly beyond correction.
Anonymous says:
QuickSilver: new laws only help if they are enforced. Remember, the FISA law currently in force is supposed to stop the administration spying on Americans without a warrant… how’s that working out for you?
ew’s quote from Blanton is spot-on: the law isn’t the problem here. The problem is that the Executive Branch has decided that they’re above the law, and they’ve dared the rest of us to do something about it.
Anonymous says:
SPEAKING OF EXCESSIVE GOV’T SECRECY – Judge Reggie just ruled no live recordings of the Plamegate case. Does this ban live blogging, too? See below.
Judge rejects media request (Judge Walton on Libby case)
Looks like Mr. â€State Secrets Privilege†Judge Reggie Walton is up to no good again, trying to keep as much of this administration’s â€doings†secret from the rest of us.
WASHINGTON – A federal judge said Tuesday he would not make available daily audio recordings of the upcoming trial of Vice President Dick Cheney’s former chief of staff.
News organizations had asked that recordings of testimony and arguments be released for broadcast. U.S. District Judge Reggie Walton denied the request, saying the only recording of court proceedings is done by the court stenographer to help ensure an accurate transcript.
â€This recording, however, is produced by the court reporter’s personal equipment and is not the official record of the proceedings,†Walton said. â€It is therefore not available to the public.â€
The Supreme Court releases audio recordings of arguments in major cases, and lower federal courts have started to follow the Supreme Court’s lead, lawyers for the news organizations said in court documents.
Broadcasting court proceedings – along with commentary and analysis – could prejudice jurors and lead to an unfair trial, Walton said.
The trial of I. Lewis â€Scooter†Libby is to begin Jan. 16. He is accused of perjury, obstruction and lying to the FBI about his conversations with journalists regarding CIA officer Valerie Plame.
SNIP
Anonymous says:
Well, let’s hope my note taking skills improve.
Rayne says:
Jeff 17:04 — while I do not support freepatriot’s sweeping generalization, here is the problem: cite exceptional reporting by the NYT that we can trust on the face of it to be just that.
Miller has tainted virtually everything in the way of investigative reporting at that outlet for me; it could be good, bad or indifferent, but knowing what I do about the editorial staff’s performance with Miller on Iraq, I can’t trust them.
emptywheel — I don’t know that I support a shield for reporters per se; existing precedent and the Constitution should provide adequate coverage. What I see as the problem is that in no decision has a jurist said in crystal clear, compelling manner that there is no First Amendment protection for 1) witnessing a criminal act and failing to report it to authorities, and 2) knowingly being used as an accessory in order to report a story in the media, but not to authorities. Branzburg offers the clearest ruling to date, and it might have to do if it allows room for further consideration by the judiciary of extenuating circumstances.
Because Judy’s testimony and statements to date have been incredibly flakey, it’s hard to tell whether she knew and was complicit, an accessory to the outing of Plame. Let’s say that it becomes clear that she knew what they were doing, and she did nothing (didn’t even write a story, the proverbial dog that didn’t bark). Should she be granted protection? Could the lack of a shield in this situation prevent persons not unlike a couple of SAO’s from using the media as accessories to a crime?
I could be persuaded differently, remain open to possibility of a better option.
looseheadprop says:
lizard!
There is a law that sets out what can and connot be classified. â€Mary†who sometimes comments hear has many comments at Firedoglake (if you know how to search the comment archives you may be able to find them) complete with statute citations and all. The problem is not that we don’t have the right statutes, the problem is that Bushco ignores those statutes and up until now, neither DOJ nor Congress has held them to account for it.
pow wow says:
Indeed, emptywheel – not to mention the latest example and the new lows that the Wall Street Journal editorialists are setting for yellow journalism, allegedly in pursuit of a reporters’ federal shield law. Talk about lack of restraint in a profession: that is the fatal flaw of these legal shield proposals for reporters, in my opinion.
So long as there are practitioners of so-called yellow journalism and other hidden-personal-agenda-driven reporting, without any serious profession-policed ethics, or restraint [First Amendment freedom must prevail] of such deceptive reporting (and of the sources behind it) that can so easily be perpetrated by the powerful in the press on the public, a broad shield for that profession against testifying in front of federal grand juries is simply madness for our democracy and for our justice system, as far as I can see. I simply can’t envision a way of providing such a privilege that wouldn’t seriously harm, in particular, our ability to hold high government officials to account in our justice system. And it doesn’t get much more deceptive by the ’powerful in the press’ than yesterday’s Dow Jones & Company (WSJ) venomously-deceptive editorial portrayal of the investigation and prosecution of Scooter Libby. When openly biased, partisan, political columnists such as Robert Novak pass for â€journalists†in the opinion of that collective profession, no credible standard for a shield law can be sustained, without enabling horrific unintended consequences for truth-telling and honesty in government.
This simply isn’t attorney-client privilege or doctor-patient privilege territory, to me. It is laughable on its face to compare the present state of American journalism with the state of professional ethics and behavior required of the average attorney or doctor. [Judge Walton just gave the Wilson attorney at CREW a little harsh public taste of that professional accountability for the legal profession. No such profession-provided accountability exists for the likes of Robert Novak, or Judy Miller, or Chris Matthews, or the owners of the Wall Street Journal or nationally-distributed Associated Press.]
Judge Tatel’s ability to overlook the possibility of such unscrupulous and downright deceitful behavior because that behavior would be done in the name of the vaunted and once-proud â€free press†under the First Amendment is quaint, I suppose, but actually dangerous considering the corporate-controlled media we are now subjected to, and manipulated by to a very significant degree. I think Tatel’s deference to the positions of Miller and Cooper was a bit of ’Nevernever Land’ thinking, really, and I believe it’s pretty obvious by now to most (or will be after the Libby trial) why that is so.
Fundamentally, I think this comes down to not lowering our standards to the lowest common denominator forced upon us by an unethical, if not criminal, agenda driven by political appointees at Bush’s Department of Justice. [Of course the New York Times and the Wall Street Journal and many, many others would love to pretend that Special Counsel Fitzgerald’s investigation represents such a bad faith, unethical (or dangerous) agenda too – but that disingenuous pretending, as EW has made clear, is so patently, objectively untrue in the investigation that Special Counsel Fitzgerald has been pursuing, that it only serves to weaken the media’s case.] Cure the cause (actual bad-faith attempts to weaken the First Amendment by way of hostile, politically-driven prosecutions), and the good-faith reporters with good-faith anonymous sources will continue to prosper unhindered and unchallenged by ethical and good faith government prosecutors and our justice system. I see hints of â€HAVAâ€-law-type mindlessness in attempts to accommodate bad behavior by a bad-faith DOJ by granting dangerously sweeping and potent protections and privileges to certain citizens who can self-proclaim that they are journalists and therefore entitled to keep secrets. The freedoms protected by the First Amendment are safe in the hands of ethical federal prosecutors and judges and can safely stand untarnished, I’m confident, without resorting to the creation of a separate class of privileged citizenship for the likes of Robert Novak.
Anonymous says:
But the problem with that, Rayne, is the criminalization of openness. That is, the government (see my point about it being a power struggle, not a legal one) wants to exert control by making even the non-dangerous circulation of information a crime. So once you call it a crime, then journalists are going to go to jail because they report on the government’s attempt to coverup a steroid scandal.
Anonymous says:
a small note, marcy, FYI/FTR, Steve Aftergood is at FAS, not POGO. (you got the link right)
Anonymous says:
Thanks lukery. Obviously, I knew where I was going but my fingers didn’t.
Jeff says:
cite exceptional reporting by the NYT that we can trust on the face of it to be just that.
You’re hanging way too much on â€on the face of it†and frankly I think you’re overreacting to the problems the Times had. Should that make one more skeptical? Yes. Completely doubtful of everything? Not that I can see.
The reporting on the NSA eavesdropping. The leaked memos detailing how divided, dishonest and in disarray the administration was two months ago on its Iraq policy. Some of the reporting on Iran. Helene Cooper – who I’d never heard of until recently – has been doing some great reporting. John Burns in Baghdad has done some really amazing stuff, including the first full account of Saddam’s execution, which was just extraordinary. (He also just wrote a really bad story about the winners and losers in the competition to succeed Abizaid and Casey, but that happens.) And so on.
Jeff says:
Juat by the way, I gather Walton ruled that there won’t be audio recordings of the trial released each day. Damn.
Also, he’s deferred ruling on Wilson’s motion to quash, since he hasn’t actually been called as a witness. I can’t imagine his motion, should he be called, would be upheld.
Jeff says:
Juat by the way, I gather Walton ruled that there won’t be audio recordings of the trial released each day. Damn.
Also, he’s deferred ruling on Wilson’s motion to quash, since he hasn’t actually been called as a witness. I can’t imagine his motion, should he be called, would be upheld.
Rayne says:
Jeff 20:49 — in my line of work, gathering competitive intelligence for businesses, I have to be able to rely on reporters. I’m literally betting the farm on them, my good name as a business consultant depends on their veracity. While I always vet my content by having two unrelated sources for any item of intelligence, what if one of them is the NYT? I can’t afford to spend the time looking for a source to vet the NYT; I just plain skip them. I simply can’t afford the time and resources to validate NYT content when I can just cut to the chase and get a different resouce altogether. If this was merely a hobby, I could blow it off and say, My bad, and then move on. But it’s my livelihood. Sorry, until NYT has a clean trackrecord for at least a couple of years, I can’t use them.
emptywheel — now there’s the real problem: non-dangerous circulation of information made criminal. That is a clear First Amendment violation to me, but is it to the current SCOTUS? This is what we need to work on, and I’m with you on this; whistleblower protection needs to be beefed up and urgently if we are going to make progress during the 110th Congress’ investigations. (Please, please, please, let the SCOTUS remain as it is until Dubya is out of office…we would have to fight like hell against any Bush nominee.) But if as in Branzburg a reporter actually stands around watching a crime that has nothing to do with the First Amendment, solely for the purposes of reporting on the commission of the act, without ever reporting the crime to the authorities, I think we are clearly talking about someone who is profitting indirectly from the commission of the crime. Totally different ballgame.
If you look at it from this perspective, Cooper could have had a problem. Miller, being our proverbial dog-that-didn’t-bark, might actually have a leg to stand on were there not a grand jury involved. I would love it if Fitz asked our dog why she opted not to bark…
Anonymous says:
Probably not going to happen, though I have a fantasy where he flips her while on the stand. That is, he knows she’s hiding stuff. Can he make her reveal it AND still make her a credible witness? Probably not.
Jeff says:
Rayne
But again, you’re mixing up two very different levels of analysis: reporters and newspapers as wholes. You start off by saying you need to rely on reporters. Fair enough. But then suddenly you’ve jumped to sweeping assessments not of reporters but of entire newspapers. That makes no sense.
And I’d like to know how you find a source to vet other newspapers anyway.
sheila sands says:
MW – Reading your bio at Amazon, in regards to citizen journalism,it occurred to me that you may have had the wonderful experience of working with our now, sadly, late Cole Campbell when he was editor of the St. Louis-Post Dispatch or as he was currently serving as Dean at UN-Reno Journ School. Cole was a brilliant and exceptional leader and voice in the cj movement. He died on January 5 in a car accident in Reno.
Nothathat says:
OTB knows you guys delete bad jokes!
ManagedChaos says:
â€The reporting on the NSA eavesdropping.â€
Umm, hello? They New York Times held this story back for a year and for the 2004 election. They clearly folded under the pressure of the Bush Administration. Those of us who question everything that comes out of the NYT are not overreacting and a few stories here and there that don’t comport with the administration’s view of reality do not exculpate the NYT in any way, shape or form.
This is the definition of terrorism: intended to create fear or â€terrorâ€, are perpetrated for a political goal (as opposed to a hate crime or â€madman†attack), deliberately target â€non-combatantsâ€, and are not conducted by a â€legitimate†government.
How could you describe what Judy â€kneepads†Miller did as anything other than terrorism? Couple that with the fact that she might have been working on behalf of a foreign government and there could be more of case against her than Padilla.
Jeff says:
ManagedChaos
If you could appreciate the fact that I am not taking the mirror-image of your cartoonish view of the NYT, you’d see that the fact that the Times screwed up by holding back the story does not affect my point in the least. I was well aware of that when I used the example, and it fits perfectly with my point.
I have no problem with questioning everything that comes out of the NYT or anywhere else. That’s just great. But the idea that for the most part the Times just runs stories that comport with the administration’s view of reality, with a few exceptions, is laughable and absurd.
And likewise, it’s total bullshit to call what Miller did terrorism. It was a series of bad things and deserves everlasting condemnation, and she deserves everlasting shame for it, as does the Times. But to call it terrorism is just facile political posturing. It would be very easy to catalogue all that is wrong with your perspective, starting with the fact that fear and terror are most definitely not the same thing, and are characteristics of very different kinds of governments and political actors.
You do everybody who’s trying to articulate a powerful position on the left a real disservice with that crap.
Mary says:
The lost media crediblity and lost government credibility are really different faces of the same secrecy disease, IMO.
The media’s failure to provide information necessary to assess their information – such as the bias of sources – bc they wanted access so badly they were willing to coverup the political agendas of their sources and plant their information without verification — it’s all part and parcel with the government’s own secrecy approach.
Secrecy has been a tool to cover up poor performance, incompetence and bad judgment and to insure the protection of people who are manipulating the story for personal and political gains.
The media used it in exactly the same way as the government has and they both ended up not just tarnished, but rusted through.
That said, yes I still absolutely believe in a shield law and IMO as unpopular as it is, sending Miller to jail was not – based on what has come out about this case and the overall context – worth the costs. I’m not saying there wasn’t a technical ground to support and differentiate it from something like the Secret Prisons story, but it has opened the door too wide IMO and especially in the context of such an amoral government that operates without the capacity to comprehend the evil it does and without the capacity to respond competently to the evil done to it.
Mary says:
The lost media crediblity and lost government credibility are really different faces of the same secrecy disease, IMO.
The media’s failure to provide information necessary to assess their information – such as the bias of sources – bc they wanted access so badly they were willing to coverup the political agendas of their sources and plant their information without verification — it’s all part and parcel with the government’s own secrecy approach.
Secrecy has been a tool to cover up poor performance, incompetence and bad judgment and to insure the protection of people who are manipulating the story for personal and political gains.
The media used it in exactly the same way as the government has and they both ended up not just tarnished, but rusted through.
That said, yes I still absolutely believe in a shield law and IMO as unpopular as it is, sending Miller to jail was not – based on what has come out about this case and the overall context – worth the costs. I’m not saying there wasn’t a technical ground to support and differentiate it from something like the Secret Prisons story, but it has opened the door too wide IMO and especially in the context of such an amoral government that operates without the capacity to comprehend the evil it does and without the capacity to respond competently to the evil done to it.
Mary says:
Very quick cases in point:
Zakaria never telling people – as he â€covered†the Iraq sitution, about his secret planning/strategerizing seesions with Wolfowitz;
Tucker commenting on Plame and never explaining his father’s position in the Libby defense network.
On and on – no on in the press ever antes up with any of their slant information anymore and no editors act to prevent them for being â€on the story†when they know of their overriding and undisclosed personal interests
pow wow says:
Mary –
To explore the concept in a little more detail: Let’s take the Plame outing situation, since to me it’s a poster child for the dangers of a legal shield that would protect reporters from being forced to provide federal testimony in our justice system.
Granted that you did not like to see Miller go to jail. But that means, I presume, that you also would forego learning who, in our own government, revealed to Robert Novak and all the other reporters involved, the identity of one of our â€national security†spy assets, so long as testimony that was not willingly given was required of any reporter?
What I don’t understand is how a stance like that contributes to better government and a more sound democracy, overall. Your last two examples are two prime examples of the current political manipulation of media coverage that results from undisclosed personal agendas. Just the same sort of personal political agenda is what drove Robert Novak to out Valerie Plame, it seems to me. Is that the price you are willing to continue to pay to protect and shield all self-defined reporters/journalists from the need to testify (as all the rest of us must do) in federal court about what they know in connection with good faith criminal proceedings (and in Miller’s case, in a criminal proceeding that has passed muster with multiple judges in our Judicial Branch)?
The lack of regulation of free speech and the press preserved and provided for by the First Amendment makes, as far as I can see, any federal shield law for reporters necessarily so broad, so unregulated, so sweeping in terms of the individuals who must be shielded that it seriously impedes â€equal justice under the law†in our country. How can a reporters’ shield law be less broadly defined than the outer limits of the speech and press â€freedom†rights of the First Amendment?
Of course, the â€owners†of many or most of the forums for the airing of free speech in our country today are a small group of powerful, wealthy, concentrated corporations, who behind the facades of their individual reporter employees, would be the ultimate beneficiaries of a federal law preventing involuntary testimony from reporters in federal criminal proceedings. As with the counting of our votes, I want no corporation holding a â€shield of secrecy†that represents such a powerful vehicle for potential harm to our democracy. I know the media corporations are fighting tooth and nail, through their employees, to get such a shield (and capitalizing on the Plame proceedings to try to sway the public to their deceptive interpretation of the underreported facts of the case).
But if the choice is between trusting the fringe practitioners of free speech like FOX television by granting them testimony shields, and trusting our Judicial Branch of government to do the right thing, when it comes to protecting and upholding our First Amendment Constitutional rights without undercutting the rule of law, the Judicial Branch carries the day, hands down, for me. And in the Plame leak investigation and Libby prosecution, this choice is very positively affirmed, I believe.
Perhaps you envision a reporter shield law that only shields reporters from testifying in rare situations (at least as rare, say, as the current DOJ regulations for their prosecutors now recommend)? Judy Miller’s case almost certainly still wouldn’t have fit any such restricted definition, as clearly her source was not only known to the government, but had already testified to his side of the conversation(s), and had seemingly cleared Miller to do the same.
Finally, note the (’curing the cause’) internal resistance that the Executive Branch is itself exerting against (presumably) abusive, bad faith attempts by high-level Bush political appointees at the DOJ to prosecute good faith leaking from elsewhere in government in today’s Josh Gerstein New York Sun article here:
Perhaps this will cheer you a little about the ability of honest public servants in the Executive Branch (in addition to those in the Judicial Branch) to resist the tendencies of short-term political office-holders to throw their weight around in an attempt to deprive the American public of knowledge about hidden unConstitutional acts and other malfeasance in office, which are learned by way of good faith â€whistle-blowing†alerts to the press about the workings of our own government.
Mary says:
pow wow – interesting stuff, I disagree with a lot of it though but will have to come back later when I have time.
For the record, as a personal matter, I didn’t mind much seeing Miller go to jail (although I think a loss of liberty is a very very very serious thing so I can’t say it made me happy either). For the record, I have also legally distinguished it pretty easily from some of the dippy assertions that it is the â€same as†other kinds of situations.
I deal with the courts and tend to respect them, but when you say,
But if the choice is between trusting the fringe practitioners of free speech like FOX television by granting them testimony shields, and trusting our Judicial Branch of government to do the right thing, when it comes to protecting and upholding our First Amendment Constitutional rights without undercutting the rule of law, the Judicial Branch carries the day, hands down, for me.
I very much disagree. We were never supposed to have to rely on the Judicial Branch, in an exercise of its paternalism, to decide what we are able to hear or not hear and which reporters which judges feel more generously inclined towards or not. That is what you are setting up with the combination of AIPAC and Miller. IOW, you are asking a court to pick between â€crimes†and decide which ones it is ok for a journalist to be punished for knowing about.
Should a journalist who knows her source lied to the FBI go to jail, but a journalist – like a Dana Priest perhaps – who knows her source violated classified information laws – does not go to jail?
Go talk to the good judges – they don’t want to be â€trusted†to make those decisions.
More later if I get a chance.
pow wow says:
Should a journalist who knows her source lied to the FBI go to jail, but a journalist – like a Dana Priest perhaps – who knows her source violated classified information laws – does not go to jail?
Of course, Judy Miller only went to jail because she refused to testify. Her own liability is nonexistent if she told the truth when she testified. Her jailing, in other words, was about avoiding testifying, not about personal legal culpability. I’m sure you know that, though, so I assume you actually meant:
Should a journalist who knows her source lied to the FBI have the same requirement to testify to a federal grand jury as a journalist – like a Dana Priest perhaps – who knows her source violated classified information laws in the interest of whistle-blowing government wrong-doing?
Or more to the point: Should a journalist’s government source who lied to the FBI go to jail, but a journalist’s government source – for a Dana Priest perhaps – who violated classified information laws in the interest of whistle-blowing government wrong-doing/questionable practices not go to jail?
Good question(s)… I’ll be interested in reading more of your analysis. [And no doubt we both agree with others here that one partial solution for this dilemma is a major revision of our hopelessly overdone Executive Branch information classification systems].
Rayne says:
Jeff 22:19 — sorry, neglected to check back here. No, I’m not conflating two separate issues, reporters and whole periodicals.
It comes down to the same lynchpin: editorial staff.
If the editor isn’t vetting some of the reporting, or simply rolls over on some, how can I be certain that other parts are safe and some are not? I have to assume there’s a problem with the entirety until I see a consistent track record of performance across the organization.
It’s no different than any product; if I get one bad egg out of a dozen in each of several purchases from the same store, should I have to take the entire dozen, or continue to purchase from that store? Hell no. First bad egg, I cut them slack; I might finish that dozen with a skeptical eye. But the second bad egg from another dozen? I’m taking the entire dozen back to the store and telling them they lost my business.
In my line of work I have my ways of vetting information; some of it is feedback from users, some of it is feedback from the rest of the industry, particularly mavens who will take any reporting as a throw-down dare. But then I’m not covering intelligence for national security purposes, either (thank the stars).
Mary says:
Of course, Judy Miller only went to jail because she refused to testify. Her own liability is nonexistent if she told the truth when she testified. Her jailing, in other words, was about avoiding testifying, not about personal legal culpability. I’m sure you know that, though, so I assume you actually meant:…
Actually, since my comments were in the context of a shield law where reporters who do not testify about their conversations with confidential sources do not go to jail, I meant it as I said it. Your other derivations are part of it as well, but the shield law would go to what happens when Gonzales knocks on Priest’s door and says: Tell us about your sources for the secret prisons story.
If she refuses, a shield law would keep her from being in the same position as Miller. There is also the AIPAC/Franklin situation now of direct liabilty for dissemination of classified info, which is part of your posit as well.
Needs enough time to do it justice, but in essence, when you start putting journalists in jail for not revealing things about their conversations with sources, it begins to be a very touchy situation. Fitzgerald’s crew had two finesse routes and I recognize them and understand them but am still not comfortable with one – and the other seems to have cratered – so the whole thing leave me uneasy and yes, based on where we are, I would have been ok with the result if we had not gotten access to Miller’s information.
But that’s over and done with and it did set the foundation for what was really, to me, the biggest revelation and most important thing to come out of the whole thing – Bush’s direct involvement in authorizing cherrypicked leaks to reporters who would be given the de facto ability to declassify by publication or not at their own discretion and in their own way.
For me the AIPAC lobbyists case is a much harder call, bc I think the FBI did a pretty incredible job to pull that one off and it is the kind of national security issue and even more so – the purchase of govt, including the govt’s war powers, by special interests that is a very troubling matter.
OTOH, the AIPAC ruling sets a very bloody stage. I do think we need an overhaul of the classifications system so yes, I’m with you on that. If you are intersted, I’ll try to pull it all together – the kinds of ramifications and concerns I have see and have – and dump it here later.
Katie Jacob says:
Hi Marcy, I was there too. I wanted to ask William Leonard if he was committed to secrecy to protect humint as he stated early on in the discussion, how did he feel about the Bush Administration leaking the name of an undercover NOC (Plame). They didn’t get around to reading that one out loud either.
Jeff says:
Rayne
Editorial staff is no more unitary than the publication as a whole. It’s not like the same editor is editing all these stories. And again, there’s a difference between saying the NYT fell down shamefully on the job, and saying that is the rule of their work. Rather on the contrary. The exception of really bad work like Miller’s is inexcusable, and should make us extra vigilant. But it’s not like there’s any evidence that this is their consistent pattern.
pow wow says:
If you get a chance, Mary, I’m sure I’m not the only one who would be interested in reading your fuller exposition of this issue. Your perspective is absolutely of interest, and this is a good thread for it.
Pinching from Polly’s comment in a newer thread, I’ll let this ’prosecutorial discretion’ by Special Counsel Fitzgerald with regard to the Espionage Act serve as a shining example of the â€good faith†government prosecutor behavior I’m putting my trust in (instead of a reporter shield law, with regard to our First Amendment rights and our goal of an honest government) along with the independent checks and balances that the good faith public servants in our Judicial Branch provide:
From his 2005 Libby indictment press conference:
FITZGERALD: […]And all I’ll say is that if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act.
That is a difficult statute to interpret. It’s a statute you ought to carefully apply.
I think there are people out there who would argue that you would never use that to prosecute the transmission of classified information, because they think that would convert that statute into what is in England the Official Secrets Act.
[…]
FITZGERALD: I don’t buy that theory, but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you picked the right case to charge that statute.
The Islamic Charities situation (where source identification through reporter telephone records was pursued) is another example that factors in to this discussion clearly, too, though I haven’t touched on it specifically.
It does seem clear that effective protections (via the Legislative Branch) for good faith National Security Whistle-blowers are a large part of the solution to the current threat of hostile pursuit and prosecution of anonymous good faith government sources who leak classified information to the media. In a way, it may all come down to the difference between â€good faith†(whistle-blowing leaks of classified information) vs. â€bad faith†(using classified evidence in anonymous leaks to gain tactical partisan advantage that could be achieved without such leaking) behavior. That’s what Congress needs to focus on, I think (along with the classification rules), rather than giving corporations like the FOX media empire ’open season’ for selective leaks of classified government information that are helpfully provided by anonymous partisan operatives inside the government.
But your mileage obviously varies – so do spell out your position more fully for us, if you get a chance.
Mary says:
I’ll get back to it later then pow wow. I do think Fitzgerald was right on the money on the Espionage Act.
But even though mine will be a longer answer, when you say:
â€â€good faith†government prosecutor behavior I’m putting my trust in â€
you’ve really distilled where we diverge. I’m in the camp that you never create a situation of law and governance that relies on the â€good personhood†of those granted power.
You might as well say that you can safely forget about FISA felonies and secret torture prisons, bc there are bad people out there (and there are) and we can rely on the â€good faith†presidential behavior, or DOJ behavior, or OLC behaviour.
I’m with the founders – information and liberty and many other things that we hold dear should not revolve around our belief that we will have angels rather than despots making the calls – they should assume the contrary IMO and be set up to address what happens if you have bad faith prosecutors.
You may not have paid much attention, for example, to the classification of a hundred pages of exculpatory information in a GITMO case – which got accidentally declassified and immediately the detainees lawyer was threatened that the info was really meant to stay classified and the lawyer’s use of the exculp info to defend his client would be prohibited by the reclassification.
Or maybe the long term FBI coverups of murders committed by informants. DOJ asserting a judge should find a man guilty under a â€secret law†which was classified, so the court couldn’t hear it, but the court should just take the DOJ’s word for it -the â€law†existed and had been violated. Maybe you’ve missed what happened with Padilla, and with Mahr Arar (I believe it was Fitzgerald’s friend and â€good faith†prosecutor Comey who certified in his presser, a month after the inhouse findings that what was being done to Padilla violated Geneva conventions, that everyone was handling Padilla pretty much by the book and Comey is also on the affidavits filed saying that if we did kidnap and conspire to torture Arar – it’s a secret).
So I’ll draw it out, but that â€trust the good faith prosecutors – who drafted the torture memos†issue is probably where we diverge. It’s not that I necessarily DO trust â€good faith†reporters either, but in general I trust dissemination over secrecy and in general my experience is that the far worse things to fear come from darkness rather than sunshine. Not always – skin cancer v. candlelight is an argument too.
Mary says:
Cully Stimson – former federal prosecutor.
pow wow says:
To be clear, Mary, my trust in â€good faith†public servant behavior is a trust I’m relying on in the absence of appropriate law or remedy from the Congress for the obvious problem we have about how to handle different sorts of leaks of classified government information to the media. In other words, in the current environment, where we either trust that (by way of good people in government) we can hold the line against abusive prosecution of whistle-blowers or take the (to me) drastic step of enacting a law that provides corporate-entity-reporters exemption from testifying to federal grand juries, I absolutely choose the trust in good people option over the extend-the-abusive-possibilites option of a reporter shield law.
Ideally, Congress remedies whistle-blowing protections to solve most of this problem, along with tackling the overclassification epidemic. [Overclassification reduces the value of classification, and its meaning, among many other unintended consequences.]
Because, fundamentally, I think you are right, and I agree with you, that the Founders knew very well that they had to expect the worst in human nature from those in public office, and wrote the Constitution accordingly. [And your examples make very clear how right they were.] So this part of my position is relative, not absolute, until a better solution can be devised that would return us closer to the place the Constitution intended us to be (pre-massive classification and all the rest of the modern ’security state’).
So I’d say that our main divergence is probably that I strongly feel that a reporter shield law is not such a â€better solution†to the dilemma, whereas you may think it is. No rush, but I’ll look forward to your fuller analysis; this is very helpful, I think, in helping to identify the real problem(s) that need fixing.
kim says:
I just watched this conference on C-SPAN, jealous that people in Ann Arbor have these sorts of events… the highlight for me was when your question was asked, EW. The whole level of discourse changed among the panelists, was just â€right on,†these were the questions to be asked! I liked Woodward’s story about how the Suskind story was fake, what classic one-upmanship! Also actually pleasantly surprised by Greta VS, there’s a bit a rebel in her I think. That Abramson lady sure has a classic NE urban accent.
They basically cried wolf for two years, then realized they were the ones harboring a wolf in their own henhouse.
Obviously they realized it long before Miller disgraced herself… I’m still amused by Abramson’s statement about what she regretted about the Miller saga. â€Everything,†she said. Which was a wonderful way to avoid the question of what she (and Lelyveld) really knew.
There is a reason Miller was pulled off of her bogus WMD reporting and called back from Iraq. She was effectively muzzled well before her entanglement with Libby and the Plame case. The Times still has a lot to answer for on that one: why have all those editorials calling her a â€First Amendment martyr†been allowed to stand? The Times has never deigned to report the obvious fact that Miller blew lies in her first grand jury appearance, and was forced to cough up a notebook from her prior, undisclosed June 23rd meeting with Libby. Do the terms of Miller’s severance agreement dictate the paper’s reticence about her role?
Why does there never seem to be talk about regulating by statute what kinds of information MAY be classified? A Journalists shield law is a laudable goal, but it will not fix the current secrecy fetish. It will, of course, allow more secrets to be reported and reduce the peril inherent in reporting them, thereby effectively limiting secrecy, but it seems to me that the net result will be an increase in the use of journalists as political tools. Could there not be a statutory fix here?
I hope that the universities and high schools of this country will soon be able to refer to the reporting on this situation as an example of the importance of the checks and balances of democracy. When Reagan began bashing the press years ago for being â€too liberalâ€, the damage began that would finally hurt our country today. What Reagan really argued for was that corporate interests be represented in the media. And prior to the Bush administration, large corporations could not own or control the media.
It was Reagan’s constant whine about the lack of representation that made the argument fit. It worked so well for the republicans that it was used and reiterated over and over again. And like a verbally abused child the nation finally believed what it was told. And then I feel, the media wanted to â€prove†that is was not â€liberal†and that â€corporate ownership†would increase nationalism and unity. They thought it would prevent the travesty of vietnam which the neocons blamed on an ignorant lack of support by the nation, in part due to the hostile press.
Instead, the people in this nation have been stripped of our power. The people know that this administration is not representing our interests. Somehow the American people have seen through the lousy reporting and corporate propaganda. It didn’t work. Some say that God works through the majority. The majority did not choose this president. Not from day one. And there is nothing that any of us can do to change the fact that democracy works and that it did not make it â€right†or â€good†or â€effective†to allow the â€elite†to make our choices for us.
Most corporations run more like a kingdom than a democracy. America has so many lessons to learn from the Bush Administration but it will take years to sort it out. Regardless this administration if it doesn’t destroy our country COULD make our country stronger. It all depends on how we choose to interact with the realities of this administration.
lizard
Agree. That’s one of the reasons I was pleased with the near-unanimity that the issue right now is Cheney’s attempt to assert the Unitary Executive. I think it gets to issues of the real conflict more quickly than anything else.
New statute. I think that it should be illegal to classify a felony, and an absolute defense to prosecution that you disclosed a felony.
That’s because one central goal of this conference was to get citizens lobbying for a journalist shield law. But that all comes back to the point of my question: to what degree did the NYT, and the press in general, lose credibility with their shilling on the Iraq War? Why did the NYT stake its journalist shield campaign on a flawed case (one which would almost certainly have never been affected by a shield law in any case)? They basically cried wolf for two years, then realized they were the ones harboring a wolf in their own henhouse. And even with Abramson’s hair shirt apologies, it’s hard to undo the damage that comes from fighting the wrong battle.
As you know, I disagree. These are distinct questions from the question of whether there should be a federal shield law. And it’s sort of punting to put these things this way. The NYT and the press in general lost credibility with their shilling on the Iraq War. But why not participate in undoing the damage by supporting a shield law, among other things? If you don’t, frankly you participate in enabling the Bush administration to use the lack of confidence in the press to go after journalists doing all manner of good and democratically crucial work.
I DO support a shield law (though I would call it a reporting shield, not a journalist shield). I also support establishing a clearer precedent than Branzburg (sp?), which I think BALCO might get us–might. My point is just that everytime the press tries to enshrine their own status–as opposed to their function (and at the same time perform that function poorly)–it makes the possibility that a shield will achieve its desired objective less likely.
Ok, I missed the status-function distinction, which seems sensible to me. I thought the point was partly to blame the press for the lack of support for journalistic protections, which is partly true but which plays into the hands of some more worse actors.
We classify way, way too many things.
Here is a gem from a recent report: Despite the intense amount of interest it’s likely to generate, it’s not clear whether any of the Iraq NIE will be made public.
http://www.npr.org/templates/s…..038;f=1001
the New York Times lost ALL of it’s credibility with me
the aluminum tubes did the job of destroying any credibility the NY Times might have had
if I can figure out that aluminum tubes 88 millimeters in diameter are most likely to be used as MISSILES, and the NY Times can’t figure that out, then the NY Times has a collective problem with their level of inteligence, or they’re shilling a lie for a reason
Knight-Ridder reported that the National Atomic Energy Agency reported that the tubes were totally unsuitable for uranium enrichment, and the dimentions of the tubes were consistent with the size of Iraqi missile launching systems
the intended use of the tubes was a â€No Brainerâ€, yet the NY Times printed the condiliar’s quotes as if they were true
when a newspaper prints obvious lies as fact, without any questioning of the lies, I have a tendency to boycott that newspaper
I haven’t given the NY Times a single cent since then
freepatriot
I just want to note that it’s completely inconsistent to at once have an exceptionally harsh condemnation of Judith Miller and such a sweeping condemnation of the Times just as such. Why can’t the criticism be, Miller did some really terrible reporting, in very identifiable ways and for pretty comprehensible reasons, and it was a massive failure by the New York Times to publish it the way they did, again for reasons that can be understood and condemned; but at the same time, the Times also has had some reporters who have done some really outstanding reporting, who avoid precisely the inexcusable mistakes and errors Miller made, and the Times overall remains a flawed but utterly indispensable institution in our democratic politics, an institution that constantly needs to be pushed to improve itself, but which does important work here and now and whose loss would be much worse than its present flaws, which show no signs of being utterly beyond correction.
QuickSilver: new laws only help if they are enforced. Remember, the FISA law currently in force is supposed to stop the administration spying on Americans without a warrant… how’s that working out for you?
ew’s quote from Blanton is spot-on: the law isn’t the problem here. The problem is that the Executive Branch has decided that they’re above the law, and they’ve dared the rest of us to do something about it.
SPEAKING OF EXCESSIVE GOV’T SECRECY – Judge Reggie just ruled no live recordings of the Plamegate case. Does this ban live blogging, too? See below.
Judge rejects media request (Judge Walton on Libby case)
Looks like Mr. â€State Secrets Privilege†Judge Reggie Walton is up to no good again, trying to keep as much of this administration’s â€doings†secret from the rest of us.
From:
http://www.twincities.com/mld/…..420511.htm
Judge rejects media request
Associated Press
WASHINGTON – A federal judge said Tuesday he would not make available daily audio recordings of the upcoming trial of Vice President Dick Cheney’s former chief of staff.
News organizations had asked that recordings of testimony and arguments be released for broadcast. U.S. District Judge Reggie Walton denied the request, saying the only recording of court proceedings is done by the court stenographer to help ensure an accurate transcript.
â€This recording, however, is produced by the court reporter’s personal equipment and is not the official record of the proceedings,†Walton said. â€It is therefore not available to the public.â€
The Supreme Court releases audio recordings of arguments in major cases, and lower federal courts have started to follow the Supreme Court’s lead, lawyers for the news organizations said in court documents.
Broadcasting court proceedings – along with commentary and analysis – could prejudice jurors and lead to an unfair trial, Walton said.
The trial of I. Lewis â€Scooter†Libby is to begin Jan. 16. He is accused of perjury, obstruction and lying to the FBI about his conversations with journalists regarding CIA officer Valerie Plame.
SNIP
Well, let’s hope my note taking skills improve.
Jeff 17:04 — while I do not support freepatriot’s sweeping generalization, here is the problem: cite exceptional reporting by the NYT that we can trust on the face of it to be just that.
Miller has tainted virtually everything in the way of investigative reporting at that outlet for me; it could be good, bad or indifferent, but knowing what I do about the editorial staff’s performance with Miller on Iraq, I can’t trust them.
emptywheel — I don’t know that I support a shield for reporters per se; existing precedent and the Constitution should provide adequate coverage. What I see as the problem is that in no decision has a jurist said in crystal clear, compelling manner that there is no First Amendment protection for 1) witnessing a criminal act and failing to report it to authorities, and 2) knowingly being used as an accessory in order to report a story in the media, but not to authorities. Branzburg offers the clearest ruling to date, and it might have to do if it allows room for further consideration by the judiciary of extenuating circumstances.
Because Judy’s testimony and statements to date have been incredibly flakey, it’s hard to tell whether she knew and was complicit, an accessory to the outing of Plame. Let’s say that it becomes clear that she knew what they were doing, and she did nothing (didn’t even write a story, the proverbial dog that didn’t bark). Should she be granted protection? Could the lack of a shield in this situation prevent persons not unlike a couple of SAO’s from using the media as accessories to a crime?
I could be persuaded differently, remain open to possibility of a better option.
lizard!
There is a law that sets out what can and connot be classified. â€Mary†who sometimes comments hear has many comments at Firedoglake (if you know how to search the comment archives you may be able to find them) complete with statute citations and all.
The problem is not that we don’t have the right statutes, the problem is that Bushco ignores those statutes and up until now, neither DOJ nor Congress has held them to account for it.
Indeed, emptywheel – not to mention the latest example and the new lows that the Wall Street Journal editorialists are setting for yellow journalism, allegedly in pursuit of a reporters’ federal shield law. Talk about lack of restraint in a profession: that is the fatal flaw of these legal shield proposals for reporters, in my opinion.
So long as there are practitioners of so-called yellow journalism and other hidden-personal-agenda-driven reporting, without any serious profession-policed ethics, or restraint [First Amendment freedom must prevail] of such deceptive reporting (and of the sources behind it) that can so easily be perpetrated by the powerful in the press on the public, a broad shield for that profession against testifying in front of federal grand juries is simply madness for our democracy and for our justice system, as far as I can see. I simply can’t envision a way of providing such a privilege that wouldn’t seriously harm, in particular, our ability to hold high government officials to account in our justice system. And it doesn’t get much more deceptive by the ’powerful in the press’ than yesterday’s Dow Jones & Company (WSJ) venomously-deceptive editorial portrayal of the investigation and prosecution of Scooter Libby. When openly biased, partisan, political columnists such as Robert Novak pass for â€journalists†in the opinion of that collective profession, no credible standard for a shield law can be sustained, without enabling horrific unintended consequences for truth-telling and honesty in government.
This simply isn’t attorney-client privilege or doctor-patient privilege territory, to me. It is laughable on its face to compare the present state of American journalism with the state of professional ethics and behavior required of the average attorney or doctor. [Judge Walton just gave the Wilson attorney at CREW a little harsh public taste of that professional accountability for the legal profession. No such profession-provided accountability exists for the likes of Robert Novak, or Judy Miller, or Chris Matthews, or the owners of the Wall Street Journal or nationally-distributed Associated Press.]
Judge Tatel’s ability to overlook the possibility of such unscrupulous and downright deceitful behavior because that behavior would be done in the name of the vaunted and once-proud â€free press†under the First Amendment is quaint, I suppose, but actually dangerous considering the corporate-controlled media we are now subjected to, and manipulated by to a very significant degree. I think Tatel’s deference to the positions of Miller and Cooper was a bit of ’Nevernever Land’ thinking, really, and I believe it’s pretty obvious by now to most (or will be after the Libby trial) why that is so.
Fundamentally, I think this comes down to not lowering our standards to the lowest common denominator forced upon us by an unethical, if not criminal, agenda driven by political appointees at Bush’s Department of Justice. [Of course the New York Times and the Wall Street Journal and many, many others would love to pretend that Special Counsel Fitzgerald’s investigation represents such a bad faith, unethical (or dangerous) agenda too – but that disingenuous pretending, as EW has made clear, is so patently, objectively untrue in the investigation that Special Counsel Fitzgerald has been pursuing, that it only serves to weaken the media’s case.] Cure the cause (actual bad-faith attempts to weaken the First Amendment by way of hostile, politically-driven prosecutions), and the good-faith reporters with good-faith anonymous sources will continue to prosper unhindered and unchallenged by ethical and good faith government prosecutors and our justice system. I see hints of â€HAVAâ€-law-type mindlessness in attempts to accommodate bad behavior by a bad-faith DOJ by granting dangerously sweeping and potent protections and privileges to certain citizens who can self-proclaim that they are journalists and therefore entitled to keep secrets. The freedoms protected by the First Amendment are safe in the hands of ethical federal prosecutors and judges and can safely stand untarnished, I’m confident, without resorting to the creation of a separate class of privileged citizenship for the likes of Robert Novak.
But the problem with that, Rayne, is the criminalization of openness. That is, the government (see my point about it being a power struggle, not a legal one) wants to exert control by making even the non-dangerous circulation of information a crime. So once you call it a crime, then journalists are going to go to jail because they report on the government’s attempt to coverup a steroid scandal.
a small note, marcy, FYI/FTR, Steve Aftergood is at FAS, not POGO. (you got the link right)
Thanks lukery. Obviously, I knew where I was going but my fingers didn’t.
cite exceptional reporting by the NYT that we can trust on the face of it to be just that.
You’re hanging way too much on â€on the face of it†and frankly I think you’re overreacting to the problems the Times had. Should that make one more skeptical? Yes. Completely doubtful of everything? Not that I can see.
The reporting on the NSA eavesdropping. The leaked memos detailing how divided, dishonest and in disarray the administration was two months ago on its Iraq policy. Some of the reporting on Iran. Helene Cooper – who I’d never heard of until recently – has been doing some great reporting. John Burns in Baghdad has done some really amazing stuff, including the first full account of Saddam’s execution, which was just extraordinary. (He also just wrote a really bad story about the winners and losers in the competition to succeed Abizaid and Casey, but that happens.) And so on.
Juat by the way, I gather Walton ruled that there won’t be audio recordings of the trial released each day. Damn.
Also, he’s deferred ruling on Wilson’s motion to quash, since he hasn’t actually been called as a witness. I can’t imagine his motion, should he be called, would be upheld.
Juat by the way, I gather Walton ruled that there won’t be audio recordings of the trial released each day. Damn.
Also, he’s deferred ruling on Wilson’s motion to quash, since he hasn’t actually been called as a witness. I can’t imagine his motion, should he be called, would be upheld.
Jeff 20:49 — in my line of work, gathering competitive intelligence for businesses, I have to be able to rely on reporters. I’m literally betting the farm on them, my good name as a business consultant depends on their veracity. While I always vet my content by having two unrelated sources for any item of intelligence, what if one of them is the NYT? I can’t afford to spend the time looking for a source to vet the NYT; I just plain skip them. I simply can’t afford the time and resources to validate NYT content when I can just cut to the chase and get a different resouce altogether. If this was merely a hobby, I could blow it off and say, My bad, and then move on. But it’s my livelihood. Sorry, until NYT has a clean trackrecord for at least a couple of years, I can’t use them.
emptywheel — now there’s the real problem: non-dangerous circulation of information made criminal. That is a clear First Amendment violation to me, but is it to the current SCOTUS? This is what we need to work on, and I’m with you on this; whistleblower protection needs to be beefed up and urgently if we are going to make progress during the 110th Congress’ investigations. (Please, please, please, let the SCOTUS remain as it is until Dubya is out of office…we would have to fight like hell against any Bush nominee.) But if as in Branzburg a reporter actually stands around watching a crime that has nothing to do with the First Amendment, solely for the purposes of reporting on the commission of the act, without ever reporting the crime to the authorities, I think we are clearly talking about someone who is profitting indirectly from the commission of the crime. Totally different ballgame.
If you look at it from this perspective, Cooper could have had a problem. Miller, being our proverbial dog-that-didn’t-bark, might actually have a leg to stand on were there not a grand jury involved. I would love it if Fitz asked our dog why she opted not to bark…
Probably not going to happen, though I have a fantasy where he flips her while on the stand. That is, he knows she’s hiding stuff. Can he make her reveal it AND still make her a credible witness? Probably not.
Rayne
But again, you’re mixing up two very different levels of analysis: reporters and newspapers as wholes. You start off by saying you need to rely on reporters. Fair enough. But then suddenly you’ve jumped to sweeping assessments not of reporters but of entire newspapers. That makes no sense.
And I’d like to know how you find a source to vet other newspapers anyway.
MW – Reading your bio at Amazon, in regards to citizen journalism,it occurred to me that you may have had the wonderful experience of working with our now, sadly, late Cole Campbell when he was editor of the St. Louis-Post Dispatch or as he was currently serving as Dean at UN-Reno Journ School. Cole was a brilliant and exceptional leader and voice in the cj movement. He died on January 5 in a car accident in Reno.
OTB knows you guys delete bad jokes!
â€The reporting on the NSA eavesdropping.â€
Umm, hello? They New York Times held this story back for a year and for the 2004 election. They clearly folded under the pressure of the Bush Administration. Those of us who question everything that comes out of the NYT are not overreacting and a few stories here and there that don’t comport with the administration’s view of reality do not exculpate the NYT in any way, shape or form.
This is the definition of terrorism: intended to create fear or â€terrorâ€, are perpetrated for a political goal (as opposed to a hate crime or â€madman†attack), deliberately target â€non-combatantsâ€, and are not conducted by a â€legitimate†government.
How could you describe what Judy â€kneepads†Miller did as anything other than terrorism? Couple that with the fact that she might have been working on behalf of a foreign government and there could be more of case against her than Padilla.
ManagedChaos
If you could appreciate the fact that I am not taking the mirror-image of your cartoonish view of the NYT, you’d see that the fact that the Times screwed up by holding back the story does not affect my point in the least. I was well aware of that when I used the example, and it fits perfectly with my point.
I have no problem with questioning everything that comes out of the NYT or anywhere else. That’s just great. But the idea that for the most part the Times just runs stories that comport with the administration’s view of reality, with a few exceptions, is laughable and absurd.
And likewise, it’s total bullshit to call what Miller did terrorism. It was a series of bad things and deserves everlasting condemnation, and she deserves everlasting shame for it, as does the Times. But to call it terrorism is just facile political posturing. It would be very easy to catalogue all that is wrong with your perspective, starting with the fact that fear and terror are most definitely not the same thing, and are characteristics of very different kinds of governments and political actors.
You do everybody who’s trying to articulate a powerful position on the left a real disservice with that crap.
The lost media crediblity and lost government credibility are really different faces of the same secrecy disease, IMO.
The media’s failure to provide information necessary to assess their information – such as the bias of sources – bc they wanted access so badly they were willing to coverup the political agendas of their sources and plant their information without verification — it’s all part and parcel with the government’s own secrecy approach.
Secrecy has been a tool to cover up poor performance, incompetence and bad judgment and to insure the protection of people who are manipulating the story for personal and political gains.
The media used it in exactly the same way as the government has and they both ended up not just tarnished, but rusted through.
That said, yes I still absolutely believe in a shield law and IMO as unpopular as it is, sending Miller to jail was not – based on what has come out about this case and the overall context – worth the costs. I’m not saying there wasn’t a technical ground to support and differentiate it from something like the Secret Prisons story, but it has opened the door too wide IMO and especially in the context of such an amoral government that operates without the capacity to comprehend the evil it does and without the capacity to respond competently to the evil done to it.
The lost media crediblity and lost government credibility are really different faces of the same secrecy disease, IMO.
The media’s failure to provide information necessary to assess their information – such as the bias of sources – bc they wanted access so badly they were willing to coverup the political agendas of their sources and plant their information without verification — it’s all part and parcel with the government’s own secrecy approach.
Secrecy has been a tool to cover up poor performance, incompetence and bad judgment and to insure the protection of people who are manipulating the story for personal and political gains.
The media used it in exactly the same way as the government has and they both ended up not just tarnished, but rusted through.
That said, yes I still absolutely believe in a shield law and IMO as unpopular as it is, sending Miller to jail was not – based on what has come out about this case and the overall context – worth the costs. I’m not saying there wasn’t a technical ground to support and differentiate it from something like the Secret Prisons story, but it has opened the door too wide IMO and especially in the context of such an amoral government that operates without the capacity to comprehend the evil it does and without the capacity to respond competently to the evil done to it.
Very quick cases in point:
Zakaria never telling people – as he â€covered†the Iraq sitution, about his secret planning/strategerizing seesions with Wolfowitz;
http://www.nytimes.com/2006/10…..38;emc=rss
Tucker commenting on Plame and never explaining his father’s position in the Libby defense network.
On and on – no on in the press ever antes up with any of their slant information anymore and no editors act to prevent them for being â€on the story†when they know of their overriding and undisclosed personal interests
Mary –
To explore the concept in a little more detail: Let’s take the Plame outing situation, since to me it’s a poster child for the dangers of a legal shield that would protect reporters from being forced to provide federal testimony in our justice system.
Granted that you did not like to see Miller go to jail. But that means, I presume, that you also would forego learning who, in our own government, revealed to Robert Novak and all the other reporters involved, the identity of one of our â€national security†spy assets, so long as testimony that was not willingly given was required of any reporter?
What I don’t understand is how a stance like that contributes to better government and a more sound democracy, overall. Your last two examples are two prime examples of the current political manipulation of media coverage that results from undisclosed personal agendas. Just the same sort of personal political agenda is what drove Robert Novak to out Valerie Plame, it seems to me. Is that the price you are willing to continue to pay to protect and shield all self-defined reporters/journalists from the need to testify (as all the rest of us must do) in federal court about what they know in connection with good faith criminal proceedings (and in Miller’s case, in a criminal proceeding that has passed muster with multiple judges in our Judicial Branch)?
The lack of regulation of free speech and the press preserved and provided for by the First Amendment makes, as far as I can see, any federal shield law for reporters necessarily so broad, so unregulated, so sweeping in terms of the individuals who must be shielded that it seriously impedes â€equal justice under the law†in our country. How can a reporters’ shield law be less broadly defined than the outer limits of the speech and press â€freedom†rights of the First Amendment?
Of course, the â€owners†of many or most of the forums for the airing of free speech in our country today are a small group of powerful, wealthy, concentrated corporations, who behind the facades of their individual reporter employees, would be the ultimate beneficiaries of a federal law preventing involuntary testimony from reporters in federal criminal proceedings. As with the counting of our votes, I want no corporation holding a â€shield of secrecy†that represents such a powerful vehicle for potential harm to our democracy. I know the media corporations are fighting tooth and nail, through their employees, to get such a shield (and capitalizing on the Plame proceedings to try to sway the public to their deceptive interpretation of the underreported facts of the case).
But if the choice is between trusting the fringe practitioners of free speech like FOX television by granting them testimony shields, and trusting our Judicial Branch of government to do the right thing, when it comes to protecting and upholding our First Amendment Constitutional rights without undercutting the rule of law, the Judicial Branch carries the day, hands down, for me. And in the Plame leak investigation and Libby prosecution, this choice is very positively affirmed, I believe.
Perhaps you envision a reporter shield law that only shields reporters from testifying in rare situations (at least as rare, say, as the current DOJ regulations for their prosecutors now recommend)? Judy Miller’s case almost certainly still wouldn’t have fit any such restricted definition, as clearly her source was not only known to the government, but had already testified to his side of the conversation(s), and had seemingly cleared Miller to do the same.
Finally, note the (’curing the cause’) internal resistance that the Executive Branch is itself exerting against (presumably) abusive, bad faith attempts by high-level Bush political appointees at the DOJ to prosecute good faith leaking from elsewhere in government in today’s Josh Gerstein New York Sun article here:
http://www.nysun.com/article/46407?page_no=1
Perhaps this will cheer you a little about the ability of honest public servants in the Executive Branch (in addition to those in the Judicial Branch) to resist the tendencies of short-term political office-holders to throw their weight around in an attempt to deprive the American public of knowledge about hidden unConstitutional acts and other malfeasance in office, which are learned by way of good faith â€whistle-blowing†alerts to the press about the workings of our own government.
pow wow – interesting stuff, I disagree with a lot of it though but will have to come back later when I have time.
For the record, as a personal matter, I didn’t mind much seeing Miller go to jail (although I think a loss of liberty is a very very very serious thing so I can’t say it made me happy either). For the record, I have also legally distinguished it pretty easily from some of the dippy assertions that it is the â€same as†other kinds of situations.
I deal with the courts and tend to respect them, but when you say,
But if the choice is between trusting the fringe practitioners of free speech like FOX television by granting them testimony shields, and trusting our Judicial Branch of government to do the right thing, when it comes to protecting and upholding our First Amendment Constitutional rights without undercutting the rule of law, the Judicial Branch carries the day, hands down, for me.
I very much disagree. We were never supposed to have to rely on the Judicial Branch, in an exercise of its paternalism, to decide what we are able to hear or not hear and which reporters which judges feel more generously inclined towards or not. That is what you are setting up with the combination of AIPAC and Miller. IOW, you are asking a court to pick between â€crimes†and decide which ones it is ok for a journalist to be punished for knowing about.
Should a journalist who knows her source lied to the FBI go to jail, but a journalist – like a Dana Priest perhaps – who knows her source violated classified information laws – does not go to jail?
Go talk to the good judges – they don’t want to be â€trusted†to make those decisions.
More later if I get a chance.
Should a journalist who knows her source lied to the FBI go to jail, but a journalist – like a Dana Priest perhaps – who knows her source violated classified information laws – does not go to jail?
Of course, Judy Miller only went to jail because she refused to testify. Her own liability is nonexistent if she told the truth when she testified. Her jailing, in other words, was about avoiding testifying, not about personal legal culpability. I’m sure you know that, though, so I assume you actually meant:
Should a journalist who knows her source lied to the FBI have the same requirement to testify to a federal grand jury as a journalist – like a Dana Priest perhaps – who knows her source violated classified information laws in the interest of whistle-blowing government wrong-doing?
Or more to the point: Should a journalist’s government source who lied to the FBI go to jail, but a journalist’s government source – for a Dana Priest perhaps – who violated classified information laws in the interest of whistle-blowing government wrong-doing/questionable practices not go to jail?
Good question(s)… I’ll be interested in reading more of your analysis. [And no doubt we both agree with others here that one partial solution for this dilemma is a major revision of our hopelessly overdone Executive Branch information classification systems].
Jeff 22:19 — sorry, neglected to check back here. No, I’m not conflating two separate issues, reporters and whole periodicals.
It comes down to the same lynchpin: editorial staff.
If the editor isn’t vetting some of the reporting, or simply rolls over on some, how can I be certain that other parts are safe and some are not? I have to assume there’s a problem with the entirety until I see a consistent track record of performance across the organization.
It’s no different than any product; if I get one bad egg out of a dozen in each of several purchases from the same store, should I have to take the entire dozen, or continue to purchase from that store? Hell no. First bad egg, I cut them slack; I might finish that dozen with a skeptical eye. But the second bad egg from another dozen? I’m taking the entire dozen back to the store and telling them they lost my business.
In my line of work I have my ways of vetting information; some of it is feedback from users, some of it is feedback from the rest of the industry, particularly mavens who will take any reporting as a throw-down dare. But then I’m not covering intelligence for national security purposes, either (thank the stars).
Of course, Judy Miller only went to jail because she refused to testify. Her own liability is nonexistent if she told the truth when she testified. Her jailing, in other words, was about avoiding testifying, not about personal legal culpability. I’m sure you know that, though, so I assume you actually meant:…
Actually, since my comments were in the context of a shield law where reporters who do not testify about their conversations with confidential sources do not go to jail, I meant it as I said it. Your other derivations are part of it as well, but the shield law would go to what happens when Gonzales knocks on Priest’s door and says: Tell us about your sources for the secret prisons story.
If she refuses, a shield law would keep her from being in the same position as Miller. There is also the AIPAC/Franklin situation now of direct liabilty for dissemination of classified info, which is part of your posit as well.
Needs enough time to do it justice, but in essence, when you start putting journalists in jail for not revealing things about their conversations with sources, it begins to be a very touchy situation. Fitzgerald’s crew had two finesse routes and I recognize them and understand them but am still not comfortable with one – and the other seems to have cratered – so the whole thing leave me uneasy and yes, based on where we are, I would have been ok with the result if we had not gotten access to Miller’s information.
But that’s over and done with and it did set the foundation for what was really, to me, the biggest revelation and most important thing to come out of the whole thing – Bush’s direct involvement in authorizing cherrypicked leaks to reporters who would be given the de facto ability to declassify by publication or not at their own discretion and in their own way.
For me the AIPAC lobbyists case is a much harder call, bc I think the FBI did a pretty incredible job to pull that one off and it is the kind of national security issue and even more so – the purchase of govt, including the govt’s war powers, by special interests that is a very troubling matter.
OTOH, the AIPAC ruling sets a very bloody stage. I do think we need an overhaul of the classifications system so yes, I’m with you on that. If you are intersted, I’ll try to pull it all together – the kinds of ramifications and concerns I have see and have – and dump it here later.
Hi Marcy,
I was there too. I wanted to ask William Leonard if he was committed to secrecy to protect humint as he stated early on in the discussion, how did he feel about the Bush Administration leaking the name of an undercover NOC (Plame). They didn’t get around to reading that one out loud either.
Rayne
Editorial staff is no more unitary than the publication as a whole. It’s not like the same editor is editing all these stories. And again, there’s a difference between saying the NYT fell down shamefully on the job, and saying that is the rule of their work. Rather on the contrary. The exception of really bad work like Miller’s is inexcusable, and should make us extra vigilant. But it’s not like there’s any evidence that this is their consistent pattern.
If you get a chance, Mary, I’m sure I’m not the only one who would be interested in reading your fuller exposition of this issue. Your perspective is absolutely of interest, and this is a good thread for it.
Pinching from Polly’s comment in a newer thread, I’ll let this ’prosecutorial discretion’ by Special Counsel Fitzgerald with regard to the Espionage Act serve as a shining example of the â€good faith†government prosecutor behavior I’m putting my trust in (instead of a reporter shield law, with regard to our First Amendment rights and our goal of an honest government) along with the independent checks and balances that the good faith public servants in our Judicial Branch provide:
The Islamic Charities situation (where source identification through reporter telephone records was pursued) is another example that factors in to this discussion clearly, too, though I haven’t touched on it specifically.
It does seem clear that effective protections (via the Legislative Branch) for good faith National Security Whistle-blowers are a large part of the solution to the current threat of hostile pursuit and prosecution of anonymous good faith government sources who leak classified information to the media. In a way, it may all come down to the difference between â€good faith†(whistle-blowing leaks of classified information) vs. â€bad faith†(using classified evidence in anonymous leaks to gain tactical partisan advantage that could be achieved without such leaking) behavior. That’s what Congress needs to focus on, I think (along with the classification rules), rather than giving corporations like the FOX media empire ’open season’ for selective leaks of classified government information that are helpfully provided by anonymous partisan operatives inside the government.
But your mileage obviously varies – so do spell out your position more fully for us, if you get a chance.
I’ll get back to it later then pow wow. I do think Fitzgerald was right on the money on the Espionage Act.
But even though mine will be a longer answer, when you say:
â€â€good faith†government prosecutor behavior I’m putting my trust in â€
you’ve really distilled where we diverge. I’m in the camp that you never create a situation of law and governance that relies on the â€good personhood†of those granted power.
You might as well say that you can safely forget about FISA felonies and secret torture prisons, bc there are bad people out there (and there are) and we can rely on the â€good faith†presidential behavior, or DOJ behavior, or OLC behaviour.
I’m with the founders – information and liberty and many other things that we hold dear should not revolve around our belief that we will have angels rather than despots making the calls – they should assume the contrary IMO and be set up to address what happens if you have bad faith prosecutors.
You may not have paid much attention, for example, to the classification of a hundred pages of exculpatory information in a GITMO case – which got accidentally declassified and immediately the detainees lawyer was threatened that the info was really meant to stay classified and the lawyer’s use of the exculp info to defend his client would be prohibited by the reclassification.
Or maybe the long term FBI coverups of murders committed by informants. DOJ asserting a judge should find a man guilty under a â€secret law†which was classified, so the court couldn’t hear it, but the court should just take the DOJ’s word for it -the â€law†existed and had been violated. Maybe you’ve missed what happened with Padilla, and with Mahr Arar (I believe it was Fitzgerald’s friend and â€good faith†prosecutor Comey who certified in his presser, a month after the inhouse findings that what was being done to Padilla violated Geneva conventions, that everyone was handling Padilla pretty much by the book and Comey is also on the affidavits filed saying that if we did kidnap and conspire to torture Arar – it’s a secret).
So I’ll draw it out, but that â€trust the good faith prosecutors – who drafted the torture memos†issue is probably where we diverge. It’s not that I necessarily DO trust â€good faith†reporters either, but in general I trust dissemination over secrecy and in general my experience is that the far worse things to fear come from darkness rather than sunshine. Not always – skin cancer v. candlelight is an argument too.
Cully Stimson – former federal prosecutor.
To be clear, Mary, my trust in â€good faith†public servant behavior is a trust I’m relying on in the absence of appropriate law or remedy from the Congress for the obvious problem we have about how to handle different sorts of leaks of classified government information to the media. In other words, in the current environment, where we either trust that (by way of good people in government) we can hold the line against abusive prosecution of whistle-blowers or take the (to me) drastic step of enacting a law that provides corporate-entity-reporters exemption from testifying to federal grand juries, I absolutely choose the trust in good people option over the extend-the-abusive-possibilites option of a reporter shield law.
Ideally, Congress remedies whistle-blowing protections to solve most of this problem, along with tackling the overclassification epidemic. [Overclassification reduces the value of classification, and its meaning, among many other unintended consequences.]
Because, fundamentally, I think you are right, and I agree with you, that the Founders knew very well that they had to expect the worst in human nature from those in public office, and wrote the Constitution accordingly. [And your examples make very clear how right they were.] So this part of my position is relative, not absolute, until a better solution can be devised that would return us closer to the place the Constitution intended us to be (pre-massive classification and all the rest of the modern ’security state’).
So I’d say that our main divergence is probably that I strongly feel that a reporter shield law is not such a â€better solution†to the dilemma, whereas you may think it is. No rush, but I’ll look forward to your fuller analysis; this is very helpful, I think, in helping to identify the real problem(s) that need fixing.
I just watched this conference on C-SPAN, jealous that people in Ann Arbor have these sorts of events… the highlight for me was when your question was asked, EW. The whole level of discourse changed among the panelists, was just â€right on,†these were the questions to be asked! I liked Woodward’s story about how the Suskind story was fake, what classic one-upmanship! Also actually pleasantly surprised by Greta VS, there’s a bit a rebel in her I think. That Abramson lady sure has a classic NE urban accent.
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