Thursday, July 07, 2005

Jailing Judith - not about Freedom of the Press

I'm trying to avoid thinking about this morning's bombing/explosions in London as I'm sure the news can only get worse. . .in an effort to do so, I've decided to address the mixed signals I must be giving regarding PlameGate (at least based on some trackbacks and emails I've received).

I think the "Freedom of the Press" justification for a journalist who published a story (or spoke publicly about) & then refused to testify/reveal a source is bogus in this particular instance. We're not talking about a whistle-blower providing information about corruption in an effort to uncover (and stop) criminal activity; there would be an understandable & legitimate need to protect a source's identity under those circumstances.

This is a case that (theoretically, at least) involves what was either (depending on who you believe):
  • the outing of a covert CIA operative;
  • the (non)outing of a former operative that was widely known to be a former covert operative no longer involved in covert operations;
  • the outing of a CIA agent whose name was public as a former operative that was once again working covertly (i.e., the outing served as notification she was again an active agent); or
  • the outing of a NOC (agent with non-official cover).
In publishing this information, the reporter essentially serves as an agent of a pretty heinous crime (if Plame's ID as a CIA operative was so well known, why would or should the source of such information have to remain anonymous?).

One could even make the argument that a reporter who obtained information revealing the identity of a person believed to be a covert operative could have an obligation to report the source of that leak, since there is not only the potential for the operative's life to be endangered, there is also the potential to blow an operation in a manner that could potentially endanger several lives (depending on the operation itself). Of course, when the source is a high level government official, it's understandable why a reporter would fail to do so of their own volition but not why they would fail to do so under court order while in the public spotlight (which should, theoretically, provide some protection). Under these circumstances I think anyone who published the identity of Plame using anonymous sources should be required to testify in the matter and provide substantiating documentation, including source identification.

The problem with Judith Miller's situation is that Miller didn't report on this story. To justify requiring her to testify and jailing her for contempt in her refusal to do so, there has to be some other link to her (i.e., she was named as a source herself, she spent time discussing information and her own investigation into the matter with others that lead the inquiry back to her, or she is otherwise directly involved/linked in the matter - especially if the link to her makes her complicit in the cover-up of crime). In the absence of such a connection, anyone (not just the press) could theoretically be required to testify (or face jail time for contempt) about what they may or may not have heard, and from whom they may have heard it based on an understanding they may have heard something about X regardless of whether they publicized the "information" they received. That's not justice or a legitimate investigation, that's a witch hunt.

I am neither a fan of Judith Miller, nor am I someone who believes that a reporter like Matt Cooper or Robert Novak should be able to avoid testifying/naming sources in this case based on a claim the requirement to do so constitutes some egregious violation of freedom of the press, but I don't think (based on the information that is currently available to the public) that Judith Miller should go to jail for not revealing her source for a story she did not publish unless she meets the criteria stated above.

Edit 15:29 - added link to FP's post regarding the matter (review SB George's comments for further details)

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