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July 08, 2005

NY TimesWatch®: It's Miller Time

The half-vast editorial staff confesses itself quite pleased with the TimesWatch®. Following the exploits of the venerable Grey Lady has proven a never ending source of amusement. Yesterday's editorial was no exception: the Times' staff were in High Dudgeon. After much consideration, we awarded it the coveted Two-Hanky Rating:

This is a proud but awful moment for The New York Times and its employees. One of our reporters, Judith Miller, has decided to accept a jail sentence rather than testify before a grand jury about one of her confidential sources. Ms. Miller has taken a path that will be lonely and painful for her and her family and friends. We wish she did not have to choose it, but we are certain she did the right thing.

She is surrendering her liberty in defense of a greater liberty, granted to a free press by the founding fathers so journalists can work on behalf of the public without fear of regulation or retaliation from any branch of government.

Leaving no metaphor unstrained, we waited for the Times to point out that, like the young Nathan Hale, Ms. Miller regrets that she has only one life to lay down for her country.

The Times goes on to give us a lecture on the law. First of all, they admit Ms. Miller is on the wrong side of it. They then put forth the rather quixotic argument that she is not a public servant. We are, apparently, to infer from this that private citizens, having sworn no oath to uphold the law, have no duty to obey it. Ms. Miller, the Times proudly asserts, can best serve the Constitution by defying the courts and shielding informants who violate the law:

Critics point out that even presidents must bow to the Supreme Court. But presidents are agents of the government, sworn to enforce the law. Journalists are private citizens, and Ms. Miller's actions are faithful to the Constitution. She is defending the right of Americans to get vital information from news organizations that need not fear government retaliation - an imperative defended by the 49 states that recognize a reporter's right to protect sources.

Disregard for a moment the inconvenient fact that Ms. Miller appears in federal court (which recognizes no shield law). The right of news organizations to collect information from anonymous sources does not include the "right" to cover up criminal activity. Doctors, lawyers, and even some clergy do not enjoy an absolute privilege of confidentiality. They must bow to exceptions where criminal activity is known or suspected. Health care professionals are mandated reporters, lawyers acknowledge the crime-fraud exception to attorney-client privilege. Only journalists, sez the Times, must brook no limits in the course of their quest for the Truth.

Unfortunately, the Times never explains the subtleties that make it right for reporters to cover up evidence of a possible crime. For that is what we're talking about here - Ms. Miller's source, they openly admit - disclosed the name of a "covert agent":

It is for these reasons that most states have shield laws that protect reporters' rights to conceal their sources. Those laws need to be reviewed and strengthened, even as members of Congress continue to work to pass a federal shield law. But at this moment, there is no statute that protects Judith Miller when she defies a federal trial judge's order to reveal who told her what about Valerie Plame Wilson's identity as an undercover C.I.A. operative.

The Times argument, as I take it, is that it is just fine for reporters to aggressively solicit informants for information, the disclosure of which is against the law. By extension, it must then be even better for reporters to obstruct grand juries by withholding evidence. Not only is this acceptable, it is a noble thing: the reporter is keeping a promise and upholding the Constitution by doing so.

The Founding Fathers (and Nathan Hale) would be proud.

What the Times and so many others fail to consider is that in this tell-all society there are still some things which should not be disclosed...such as the names of covert agents. No one asks the right question here: who is Ms. Miller trying to shield? Not a whistleblower - the intended beneficiary of the shield laws the Times so repetitiously references, but someone who ostensibly tried to retaliate against a "whistleblower" (Joseph Wilson) by disclosing the identity of his wife (Valerie Plame).

This is information that should not have been disclosed. By law, Ms. Miller was not entitled to it, and by law, the government was entitled to take action if Ms. Plame's identity was wrongly disclosed. This is what the grand jury was trying to discover, and this is what Ms. Miller's obstruction is preventing them from finding out. But the Times cleverly restates the issue:

The point of this struggle is to make sure that people with critical information can feel confident that if they speak to a reporter on the condition of anonymity, their identities will be protected. No journalist's promise will be worth much if the employer that stands behind him or her is prepared to undercut such a vow of secrecy.

The Times is shocked to think a journalist might be forced to break a promise that never should have been made, or that an informant might [shudder] lose his job for leaking classified information. What right, after all, does the government have to protect the identity of CIA agents? And how important is any of this next to the sanctity of the reporter's (and the public's) right to know...about matters that are classified?

Of course, the farcical aspect of this case must be admitted. For though it was the howling of the press corps that brought us to this juncture, the elements of a crime are almost certainly not present. But grand juries and special prosecutors cannot simply throw their hands up and decide not to investigate allegations of wrongdoing.

And the Times cannot have it both ways. If Plame was truly a covert agent and outing her was a crime as they allege, Miller should never have tried to learn her identity. That information was classified and the disclosing of it a crime not subject to privileged communication.

On the other hand, if Plame's identity was known and she was not a covert agent, Miller's source need fear no retaliation from the government, because he has committed no crime. He only discussed what many others knew to be the case. And if there was no crime, why have the media (including the Times) been demanding an investigation? The Post has stated that it may have been reporters who leaked Plame's identity to government officials.

The Times is in the ridiculous position of arguing that Miller is protecting a discredited whistleblower (Wilson) when she is actually protecting someone who (according to their theories, at least) may have tried to retaliate against the whistleblower. The media made the accusation, and inconsistent as it may seem, once launched, investigations must be carried out regardless of where they lead. Unfortunately for the Times, their hypocrisy in demanding Bob Novak give up his sources rebounded on them in spades.

Given that the identity of her source may well be known, several Plame-watchers have wondered why the federal prosecutor has pursued Ms. Miller so vigorously. Josh Marshall provides an interesting clue:

This isn't the first time Plame prosecutor Patrick Fitzgerald has tangled with Judy Miller while investigating a leak out of the Bush White House.

A little more than a year ago, I reported on TPM how Fitzgerald had quite aggressively investigated another Bush White House leak in late 2001 and early 2002. Fitzgerald had been investigating three Islamic charities accused of supporting terrorism -- the Holy Land Foundation, the Global Relief Foundation, and the Benevolence International Foundation. But just before his investigators could swoop in with warrants, two of the charities in question got wind of what was coming and, apparently, were able to destroy a good deal of evidence.

What tipped them off were calls from two reporters at the New York Times who'd been leaked information about the investigation by folks at the White House.

One of those two reporters was Judy Miller.

From the WaPo account:

On Dec. 3, 2001, Times reporter Judith Miller telephoned officials with the Holy Land Foundation for Relief and Development, a Texas-based charity accused of being a front for Palestinian terrorists, and asked for a comment about what she said was the government's probable crackdown on the group.

U.S. officials said this conversation and Miller's article on the subject in the Times on Dec. 4 increased the likelihood that the foundation destroyed or hid records before a hastily organized raid by agents that day.

Well, that's one federal raid blown by a Times reporter.

On Dec. 13, Times reporter Philip Shenon called the Illinois-based Global Relief Foundation and asked for comment about the government's intention to freeze its assets because of allegations it had ties to terrorists. "FBI personnel learned that some of the targets [of the investigation] may be destroying documents," and agents "hastily assembled" a raid on the charity on Dec. 14, according to a report by the commission that investigated the Sept. 11, 2001, attacks.

And now we have an investigation compromised and law enforcement officials forced to throw together a last-minute raid because their intentions were revealed by another Times reporter.

Does anyone see a pattern here? Apparently the staff of the NY Times feels their "right to get the story" outweighs national security considerations, and they don't mind blowing a terrorism investigation if that's what it takes to get the scoop.

But that's not all. Ms. Miller's high-handedness goes even farther back, to a stint as an embedded reporter in Iraq. Ms. Miller drew fire from military officials for her role in the Army unit's search for Iraqi weapons and the debriefing of Saddam Hussein's son-in-law:

...the officer said of Miller, "this woman came in with a plan. She was leading them. . . . She ended up almost hijacking the mission."

Said a senior staff officer of the 75th Exploitation Task Force, of which MET Alpha is a part: "It's impossible to exaggerate the impact she had on the mission of this unit, and not for the better." Three weapons specialists were reassigned as the unit changed its approach, according to officers with the task force.

One military officer, who says that Miller sometimes "intimidated" Army soldiers by invoking Defense Secretary Donald Rumsfeld or Undersecretary Douglas Feith, was sharply critical of the note. "Essentially, she threatened them," the officer said, describing the threat as that "she would publish a negative story."

An Army officer, who regarded Miller's presence as "detrimental," said: "Judith was always issuing threats of either going to the New York Times or to the secretary of defense. There was nothing veiled about that threat," this person said, and MET Alpha "was allowed to bend the rules."

Ms. Miller would seem to be a fascinating character. She is simultaneously reviled as a traitor by the Left for her reporting on WMDs and hailed as a saint for going to jail to protect (ostensibly) a Bush administration official who leaked the name of a "covert agent" to get back at discredited "whistleblower" Joseph Wilson.

Unless she has another source still undisclosed, she has chosen martyrdom rather than "reveal" the name of a source already known to federal prosecutors - a source who, if you buy the Times' reasoning (and I don't, but that is beside the point at the grand jury stage), committed a federal crime in disclosing Plame's identity.

Furthermore, Ms. Miller has a history of exploiting illegal leaks from administration officials in her capacity as a Times reporter and using them to interfere with federal investigations.

The more I find out about The Most Asinine Case of the Century, the less sympathy I have for any of the players.

CWCID: Ed Lasky of The American Thinkerfor the Josh Marshall tip.

And in the I Can't Make This Stuff Up Department, Ed reports that Judy had some creative sentencing suggestions for the court:

New York Times reporter Judith Miller has apparently made the astonishing proposal that she be deprived of cell phone and email communication in lieu of incarceration...

The Federal prosecutor riposted:

Speaking of Miller, Fitzgerald wrote, "Certainly one who can handle the desert in wartime, is far better equipped than the average person jailed in a federal facility." Miller, of course, covered (some say, mis-covered) the search for weapons of mass destruction in Iraq following the U.S. invasion.
Miller "could avoid even a minute of separation from her husband," he wrote in another section, "if she would do no more than just follow the law like every other citizen in America is required to do."

There's more where that came from.

Update: David Ignatius weighs in with a very well-stated argument (well of course it is - he made most of the same points I did... :)

Posted by Cassandra at July 8, 2005 02:03 AM

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You're good, kiddo...kudos. Freedom of the Press, as with any other type of freedom, must have sensible limits.

Posted by: camojack at July 8, 2005 08:30 AM

The Grey Lady has been reduced to running TV commercials on CNN to sell itself. I guess nobody's buying.

Posted by: jordan at July 8, 2005 09:51 AM

If they are doing work "on behalf of the public", can we, as the public, ask them to stop? Can we unelect them?

Posted by: Grumpy at July 8, 2005 11:37 AM

I have seen the press take stories from fake named terrorists and print it...
I have read lies in the press...
It is time for the press to be held accountable; the case is a criminal case and I hope "Judith
Miller" enjoys her stay in jail...she deserves it.
The law is the law and if she wants to change that law it has to be done in a lawful way:legislation and by vote.
Until then she is in the wrong; PERIOD!

Posted by: Diana at July 9, 2005 10:03 AM

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