Thursday, October 14, 2004

Free Matthew Cooper (and Judith Miller)!

There is surprisingly little complaint even amongst journalists about the way Judith Miller is being treated. It appears that the authorities have picked on exactly the right person, someone so hated and so tainted by abusive use of unnamed sources that almost everybody is ready to let her go to jail. I still think this is a terrible mistake. Here is a little more context:

  1. To explain why Miller is so justifiably despised, read this article by Joseph Kay on the World Socialist Web Site. Kay describes in meticulous detail the many deceptive tricks employed by Miller and the New York Times to assist the Bush Administration into fooling the American people into war. He writes:

    "Miller functioned as more than a reporter. She was a proxy for elements within the Pentagon - including Secretary of Defense Donald Rumsfeld and his undersecretary, Douglas Feith - as well as Ahmed Chalabi, the former Pentagon favorite among Iraqi exiles."


    "The Times' reporting and editorial comments in the run-up to war were not mistakes, lapses in judgment, or the result of naïveté. The so-called 'newspaper of record' was pursuing a conscious policy: it wanted war in Iraq.

    Whatever differences the Times might have had with the administration over tactics, the newspaper was aiding and abetting the efforts of the government to dupe the public and create a climate of fear and hysteria conducive to launching an unprovoked war. It tailored its reporting to that end and served as a mouthpiece for the administration."


    "One obvious question arises from the Times' October 3 report on the aluminum tubes hoax: why did the newspaper fail to undertake such an investigation of the government's claims in late 2002 and early 2003? The answer clearly emerges from the October 3 exposé itself: the Times was itself complicit in the government's war conspiracy."

  2. From Tom Scocca in the New York Observer:

    " Ms. Miller is not going to the mat for some helpless whistleblower; she's defending the right of high officials to try to anonymously sic The New York Times on a subordinate who bucked them. Mr. Wilson signed his own name to his criticisms, and it was the confidential sources who allegedly sought reprisal.

    'For some group of people, that would be called whistleblowing,' Mr. Sulzberger said on the phone Tuesday evening - for instance, he said, people who thought Mr. Wilson's complaints about the administration (aired in a Times op-ed) hadn't shared all the relevant facts.

    'I'm not suggesting that you have to agree every time with whether that person should have given out that information,' Mr. Sulzberger said.

    Floyd Abrams, Ms. Miller's lawyer, offered a similar view. 'The law can't distinguish between good leaks and bad,' Mr. Abrams said."

    Mr. Adams is exactly correct. A court can't and won't inquire into the motives of the leaker. It is charged with simply obtaining the name from the journalist. Indeed, in the real world, a court is going to be much more sympathetic to the motives of a senior administration official than it would to a whistleblower like Daniel Ellsberg.

  3. Tim Rutten in the Los Angeles Times considers the law involved in this case, and points out that it is a real stretch to fit Miller under any of the three component tests involved in determining whether a journalist can be compelled to divulge a source (Rutten is also not thrilled about the new prosecutorial technique of obtaining waivers from sources). If Miller is so far from fitting any of the tests, you have to wonder why the prosecutors are so interested in going after her.

  4. A Boston Phoenix editorial says:

    "SPECIAL PROSECUTOR Patrick Fitzgerald is out of control. Appointed by Attorney General John Ashcroft to find out which 'senior administration officials' revealed the identity of undercover CIA operative Valerie Plame to syndicated columnist Robert Novak in July 2003, Fitzgerald has instead embarked on a witch-hunt against the media - and, by extension, against the First Amendment . . . ."


    "Journalists do not have an absolute right to keep their sources confidential. Over the years the courts have made it clear that reporters have the same civic responsibility as any member of the public to provide relevant information in an ongoing criminal investigation. But in its landmark Branzburg v. Hayes decision, the US Supreme Court in 1972 suggested that certain standards must be met before prosecutors can start dragging journalists to the witness stand. As interpreted by the courts, the Branzburg ruling has come to mean that journalists may not be forced to reveal their sources unless the information they have is crucial to an ongoing criminal investigation, and unless there are no alternative means of obtaining that information from non-journalists. Above all, Branzburg makes it clear that prosecutors may not use their power to harass reporters. Yet that is precisely what Ashcroft, through Fitzgerald, is up to in the case of Judith Miller."

    and (and consider the conspiracy theory I raised before):

    "If he wished, George W. Bush could find out tomorrow which of his underlings outed Valerie Plame. Instead, his administration, in the person of Fitzgerald, is harassing and intimidating the journalists who were the recipients of White House leaks. It's a characteristic tactic for these thugs - and it sends a chilling message to any reporter who promises confidentiality to a source while attempting to ferret out the truth. This is just one more reason that Bush and his administration need to be turned out of office."

    The supporters of the Democrats for some unknown reason seem to have assumed that Fitzgerald, although working for Ashcroft, is somehow a good guy just interested in finding out the name of the horrible man who outed Plame (note that, besides Miller, Fitzgerald is also going after Time reporter Matthew Cooper). This is beginning to look like a fairy tale. If Bush really wanted the justice system to have control of the culprit, he could have turned him over long ago. This whole investigation is beginning to look more and more like a conspiracy centered around Ashcroft and Fitzgerald to fatally attack the ability of journalists to discover the truth using whistleblowers as sources.

Destroying the ability of journalists to conduct investigative reporting using anonymous sources benefits only the one group threatened by investigative reporting, the plutocrats. The attack on the responsible exercise of journalism through this full frontal attack on the First Amendment is so obvious that the inability of people to see it is starting to worry me. Maybe the answer to American politics is that Republicans are simply smarter than the stupid and gullible Democrats. Why do the Democrats always look like Charlie Brown, and the Republicans like Lucy with the football?