Friday, February 01, 2008

Fitz of Regret

In the headier days of 2004, internet Dems crowed gleefully when Patrick Fitzgerald tossed Times reporter Judy Miller in the klink for refusing to reveal sources that may or may not have given her information that she never in fact put into print. Miller had been a reliable propagandist for the pro-war line during the months leading up to the invasion of Iraq--she was notably a mark of that con man extraordinaire, Ahmed Chalabi. Digby, the popular Democratic partisan who runs the blog Hullaballoo, and the folks at FireDogLake were especially vocal on the justness of all this. Because they and their buddies judged that Miller was no journalist, and because they found Miller ideologically offensive, and, most of all, because they thought this time they were really going to get Bush in his own little Watergate, they loudly made the case that when it came to "national security," when it came to the "outing" of a CIA agent, the traditional, unwritten immunities that we confer on writers and journalists so that they can pursue and reveal the government's secrets with some modest protection from reprisal did not apply. They made a qualitative judgment about Miller's reporting--one with which I largely agreed, to be fair--and then decided that since she wasn't a "real" journalist, she was an Administration stooge. Patrick Fitzgerald was on the side of the angels, and anyone who suggested that it was bad precedent to toss a reporter in jail for protecting her sources, no matter how venal the reporter or degraded the sources, was inherently on the side of Bush, the warmongers, the Neocons, and the rest of the infinite gang of bogeymen who haunt Progressive dreams.

It was shameless and deeply unethical. Most people in most professions are pretty lousy at what they do, reporters included. But principles ought not be mere exigencies, and the speed with which Democratic partisans abandoned defense of a free and unfettered press in order to pursue a political hit job shocked even me--the frequent guests of this site know how gleefully unshockable I usually am when it comes to Democratic-Progressive perfidy. The next time you read a prog-blogger lamenting the way "the administration" has abandoned some principle--about privacy, about torture--in order to pursue some slapdash end, search their archives for a glowing defense of imprisoning people without trial in order to force them to reveal their private sources of information within the government.

Most papers are mostly infotainment, media arms of vast conglomerates that exist to sell print advertising and provide brand prestige. Most reporters are PR reps for the corporate economy and the imperial state. That doesn't obviate the necessity of protecting journalists from government retribution when every once in a while one of them produces the Pentagon Papers. I am by no means sanguine about the efficacy of the so-called Fourth Estate at guarding our liberties. If anything, I am a pessimist. But our default position should always be on the side of an increase in the rights and protections for autonomous individuals--and for whistleblowers, reporters, revealers, reactionaries. To throw over our principles and embrace limits on speech because you think that Judith Miller is a conservative and a slut is tawdry and despicable.

Now we see the thrown-over principle in action, as the government moves against a writer who reveals the incompetency, viciousness, and fraud at the heart of our so-called Intelligence Community. If James Risen can't avoid his Grand Jury subpoena and must appear before it, and if he refuses to reveal his sources within the government and CIA, will Progressives support jailing him? Or will they recant and claim he has a right to protect them because, after all, they agree with his reporting?

16 comments:

Anonymous said...

So does this exception to the subpoena power apply to all cases of journalist silence, or just when the information in question deals with government stories?

Yf

AlanSmithee said...

Pwoggie-bloggies are like comic book geeks. Scratch one and you'll find a fascist.

Montag said...

i have 'this friend,' see, who's a recovering pwog-blogger who managed to get it right on Miller and defended her re: the Plame case, but now 'my friend' has attained a more perfect state of apathy, and frankly exhaustion.

if 'my friend' can't muster the energy to now defend Risen have 'they' overthrown 'their' principles?

how is 'my friend' to come to terms with the idea that this moral failing is more like awol Bush's than war hero Kerry's (but still not have to do anything - this is important)?

la Rana said...

I see where you're going YF, and I think it would lead IOZ places I'm uncomfortable going.

The reliance on outmoded definitions of journalism, disparage it as he may, is the rot at the center of the argument. For if everyone can be a journalist (and they can!), then everyone should be entitled to resist the subpoena power, which would, in turn, make it increasingly difficult for the criminal justice system to operate, perhaps even insurmountably so.

Go ahead and make this argument as a backdoor to anarchy, but I don't think it leads anywhere else.

TGGP said...

Mencius Moldbug is often on about how we need to abolish special privileges for journalism, but unusually there thinks the state needs more power rather than less, which only makes sense to me as an expression of his dislike for journalists.

Has any of the American media taken notice of Sibel Edmonds yet? From what I hear it's only getting attention abroad, with some of the biggest stories being published by the Murdoch press.

IOZ said...

Well as much as I enjoy entering from the rear--ba-dum-bum--I'm not looking for a backdoor to anarchy. Nor am I trying to create a professional set-aside for some kind of guild journalism. I'm just making the point that a doctrine of state secrets lies at the heart of these investigations, and I reject any doctrine of state secrets. If someone writes a book, an article, or a blog post, they have a right to protect themselves and their sources from government retribution. That is a different thing than suggesting a professional journalist who knows, say, who committed a murder should be exempt from inquiry.

Swopa said...

That is a different thing than suggesting a professional journalist who knows, say, who committed a murder should be exempt from inquiry.

I think you've just endorsed the principle the bloggers you're bashing (of whom I am a fellow traveler), not to mention Fitzgerald himself, were standing up for. The Plame leak was preceded by the Wen Ho Lee case and various excesses during the Clinton-hating frenzy of the 1990s as instances of government officials leaking confidential information (often inaccurately) not to expose wrongdoing, but for corrupt political ends.

So, how do you set up a shield that protects James Risen but not Scooter Libby, Notra Trulock, Ken Starr, and L. Jean Lewis? You do what the appeals judges who ruled in favor of jailing Judith Miller did -- weigh the public interest in receiving the leaked information versus the seriousness of the alleged crime. In fact, the DOJ itself has guidelines (which Fitzgerald scrupulously followed) that limit its ability to subpoena journalists.

Now, if the DOJ becomes so partisan that it will toss those guidelines aside purely for the sake of harassing a particular reporter (even if the case won't stand up in court), or if the judiciary swings so far to the right that they rule in favor of the government by default, that approach breaks down. But in those cases, abuse is inevitable whichever way you go.

IOZ said...

You may well protect Scooter Libby, Notra Trulock, Ken Starr, and L. Jean Lewis. Such is life. If Scooter Libby wants to reveal the names of CIA agents, bully to Scooter Libby. You may refer yourself back to the sentence that includes: "I reject any doctrine of state secrets." I don't recognize the sacrosanctity of CIA covers. They should all be outed. In the absence of state secrets and secret identities, the question of protecting and/or leaking them disappears.

Swopa said...

But that just addresses blowing a CIA cover.

What if I'm a government official, and I anonymously leak that you're being investigated for treason or terrorism?

That's what happened to Wen Ho Lee and Stephen Hatfill. And under an absolute shield law, government officials would be free to do it to any political opponent they chose.

la Rana said...

Yes, yes, I'm just not sure how we go about making the distinction. Take the fact that the distinction itself would rely on the definitional nature of a crime. The process then becomes similar to the ticking-bomb-torture set-up. We'd have to know almost everything about the crime before we could compel the journalist (who we also know can identify the perpetrator) to testify.

I haven't thought about this in great depth, but it immediately strikes me as one of those things that is not terribly amenable to line drawing. Frankly, I think the approach taken in the U.S. over the last 30 years or so may be the best we can hope for: to pretend as if there are special protections for journalists, especially when it involves the government, and out of respect for that idea not imprison too many.

la Rana said...

Oh, and don't think for second that "backdoor anarchist" was a coincidence :)

IOZ said...

Sue the journalist for libel. You have two distinct situations here: one in which a government official makes a false claim, and one in which a government official makes a true claim. In the case of Plame-Wilson, it was a true statement: she did work for the CIA. A journalist who reports that should suffer no consequences, whether you, I, or anyone else judges it harmful to her or "national security" or whatever. On the other hand, if a government official makes a false claim that a journalist credulously publishes, then sue the fucking journalist, blogger, writer, whatever.

Not foolproof, but better than a system where the government decides which of its secrets are or are not legal to reveal.

Anonymous said...

Not to mention the fact that the whole idea of "national security" secrets in this day and age is brutally absurd. For Christ's sake, what super-duper secrets are we hiding from the terrorists that they can't already get easy access to on the internet? There are no more "national security secrets", and if you buy that line of tripe, you're a maroon.

la Rana said...

I think I'm pretty much in agreement about the state secrets bit, but I am not sure that resolves the dilemma. What happens, for instance, with a report that involves illegal government conduct other than the state secret variety? Does the reporter get subpoenaed? If not, why not? And that still doesn't quite tackle the problem of identifying what is and is not a "state secret," much less a crime.

Jeff in Texas said...

But this is not a state's secret issue, per se. It is a litigation or criminal trial privilege issue. In other words, a question of who is provided an evidentiary shield and for what particular purposes. Historically, such privileges have been few and narrow. One extends to a client and lawyer in the context of litigation or criminal prosecution, most obviously-- but not a client and lawyer just shooting the shit, or a client and lawyer planning a bank robbery.

As the comment above notes, who the hell is a journalist these days? If I have a conversation and then go blog about it, am I protected from testifying about who I had the conversation with?

I think a better approach than some blanket privilege would be to somehow extend whistleblower laws to include the conduits of the information that the insider passes on, journalists included under particular circumstances. As you do in any whistleblower suit, you would have to evaluate whether the insider in question deserved whistleblower status-- i.e., passing on info about contractor fraud, yes, passing on info about a political enemy of the White House, maybe not-- but you would avoid the much murkier and broader question of who the hell a journalist is.

Anonymous said...

More pwoggie fun:

http://preview.tinyurl.com/2zzeqt