Miller martyred

Jul 7th 2005
From The Economist Global Agenda

A reporter for the New York Times has been jailed for refusing to talk about her source in a scandal over the outing of a CIA spy. How much protection should journalists be permitted to give those who provide them with information anonymously?

JUST how much protection does the First Amendment to America’s constitution offer the press? That freedom is limited, a federal judge said on Wednesday July 6th as he sent Judith Miller, a reporter for the New York Times, to prison. The judge wants Ms Miller to reveal which Bush administration operatives told her that the wife of a man who had criticised the administration was a Central Intelligence Agency (CIA) officer. Ms Miller stood up for her profession, refusing to talk, and will now become a martyr for it.

But details of the odd case are sure to begin coming out anyway. Matthew Cooper, a reporter for Time magazine, was under similar threat from the judge. He had resigned himself to jail with Ms Miller, but at the last minute agreed to testify, after his source apparently released him from the need for confidentiality. Whether his source was the same as Ms Miller’s or not is unclear.

The scandal is now several years old. In 2002 the CIA sent Joseph Wilson, a former diplomat, to Africa to check on a disputed claim that Saddam Hussein had tried to buy uranium from Niger. Mr Wilson found the claim bogus. Yet the Niger-uranium story nonetheless made it into George Bush’s state-of-the-union speech in the run-up to the Iraq war. A mistake, say the Bush people; a lie and a cover-up, Mr Wilson wrote in a 2003 article.

Soon after Mr Wilson’s article appeared, Bob Novak, a conservative journalist, revealed in a column about Mr Wilson’s trip that his wife, Valerie Plame, was an undercover CIA officer working on weapons of mass destruction. Ms Plame was almost certainly outed by Bush administration officials, perhaps in revenge for Mr Wilson’s crusading article. Her clandestine career was ruined and her intelligence contacts potentially endangered. Whoever revealed her identity to several journalists, Messrs Cooper and Novak and Ms Miller among them, might have committed a felony—though this requires that the leaker be someone with authorised access to secret information and behave in a way intended to harm national security. Thus it may not have been a crime, but merely a reprehensible act that should embarrass the administration.

But will anyone pay for it? Mr Novak certainly won’t go to jail—he did not have direct access to classified information. But why is he not facing a stretch inside for refusing to reveal his sources to the leak investigators, as Ms Miller is? No one is exactly sure. Mr Novak may have co-operated with the investigation led by Patrick Fitzgerald, the special prosecutor looking into the leak, though he will not admit doing so.

Other speculation has centred on Karl Rove, Mr Bush’s closest and most formidable political adviser. Rumours had long swirled that Mr Rove was the Plame leaker. Those whisperings grew louder last week when Time, saying it was not above the law as an institution, revealed Mr Cooper’s notes for a follow-up story he did on the leak. The notes revealed that he had talked to Mr Rove, whose lawyer then hurried in to insist that his client was not the leaker. Mr Rove has already testified to the investigation, and Mr Fitzgerald, the prosecutor, has told Mr Rove’s lawyer that he is not a “target” of the probe. Anti-Rove Democrats—of whom there are many, thanks to the Bush man’s talent for outfoxing them—are still hoping that he may yet come under close scrutiny. Lewis “Scooter” Libby, the chief of staff to Dick Cheney, the vice-president, has also been rumoured to be the leaker, but his staff insists he has done nothing wrong.

Until more is known, only Ms Miller will taste jail food as a result of the case. Her lawyers asked that she be sentenced to house arrest, but on Tuesday Mr Fitzgerald argued that a cushy home-stay was not enough to make her co-operate. She may be jailed for the remaining duration of the investigation—up to four months.

It is not yet clear if anyone else will do time. Mr Cooper’s testimony may lead to the unmasking of Ms Miller’s source or sources. That could allow her to testify and get out of jail, unless she insists on not testifying as a matter of principle and the investigators still require her to answer their questions. The leakers would then, presumably, themselves face prosecution. Others could face associated charges such as perjury, obstruction of justice or conspiracy.

Rights and wrongs

Who is in the right in the legal stand-off? The first problem for journalistic purists is that, while the First Amendment is absolute in its protection of the right to publish, it is far less categorical when it comes to protecting the news-gathering process. Most American states have laws protecting scribblers from subpoena unless they have information that is vital and otherwise unobtainable. But no such statute exists at the federal level, where limits on the protection of reporters’ sources were imposed by a 1972 Supreme Court decision that the court last week declined to revisit.

The second problem is that it is getting ever harder to argue that the best journalists possess special skills and need special privileges. The mainstream media has repeatedly embarrassed itself. The New York Times was caught employing a plagiarist-cum-fantasist; CBS News relied on dodgy documents to break a story about Mr Bush; Newsweek had to retract a story about the Koran being flushed down a lavatory at Guantánamo Bay.

Third, confidential sources are problematic when it comes to the public interest. Journalists have a private interest in cultivating confidential sources to maximise their access to privileged information. But was Mr Novak's original story serving his readers or his private source? Ms Miller's sources helped produce a series of scoops during the run-up to the Iraq war about Saddam's weapons of mass destruction. But the New York Times's public editor later conceded that the paper's coverage of Iraq had often consisted of “breathless stories built on unsubstantiated revelations that, in many instances, are the anonymity-cloaked assertions of people with vested interests.” (This blot makes Ms Miller an odd martyr for the anti-Bush left.)

The journalists are not the only people on slippery ground. Mr Fitzgerald looks ever more like a run-away special prosecutor. He has not only allowed a case about a leak to morph into a case about press freedom (“Journalists are not entitled to promise complete confidentiality,” he recently asserted. “No one in America is.”). He has also gone after Mr Cooper and Ms Miller with a determination and ferocity that many feel is completely out of proportion to their alleged misdemeanours. Journalists employed pursuing hard-to-get information, beware.

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