Monday, Jul 7, 2008
Andrew O'Hehir responds to his critics.
Jul 13, 2005 | The continued angry response from many readers to my opinion piece about the Judith Miller case exemplifies the central point I was struggling to make: There is now a yawning gulf of perception between the media's sense of itself and the public's ideas about the media. One reader put it this way in a personal e-mail: "We -- the public -- see you (journalists) as a bunch of self-serving hacks. This First Amendment BS has more to do with protecting your cozy relationship with the powers that be than with serving the public." As I tried to make clear in my article, the press itself is partly, even largely, to blame for this predicament. But that doesn't change the underlying principles that are at stake here.
Today's letter writers have largely moved away from the emotional argument that Judith Miller belongs in jail because of her WMD stories, which are not related to the Plame affair. In this round, readers have raised a number of important legal and moral issues I should have dealt with more clearly in the initial essay, and for that I am grateful. I would still suggest, however, that the judgment of many on the left is clouded on the one hand by ideology and on the other by overly legalistic thinking.
Reader arguments can largely be summarized as follows: 1) The First Amendment does not offer any blanket protection of journalists' confidential sources, either in its explicit language or in judicial interpretations. 2) Whoever told Miller about Valerie Plame was committing a crime, so that source is entitled to no protection; Miller can and should be compelled to reveal his/her identity. 3) Only whistle-blowers who are leaking information about criminal (or perhaps unethical) behavior should be accorded legal protection; if the leaked information is self-serving or illegal or, for instance, part of a government propaganda operation, it merits no shield. 4) Miller was not acting as a journalist, but working inside the New York Times as a water-carrier or accomplice (or even "neocon mole") for the White House agenda, and as such she has forfeited all First Amendment protection.
Let's consider these in reverse order, leaving the most serious for last.
4) This is wild supposition. Contrary to what some readers believe, Miller never wrote or published anything about Valerie Plame (which is one of the reasons why it's so bizarre that she's in prison). So if Karl Rove or whoever else in the White House leaked Plame's identity as part of a campaign to impugn Plame's husband, Joseph Wilson, Miller didn't participate in it. Was Miller's WMD coverage influenced by her personal beliefs, and more specifically by the neoconservative argument that Saddam Hussein's regime was dangerous and that war against Iraq was necessary? That's possible, even likely. All reporters, like all other human beings, form judgments that are affected by their ideological preconceptions and their views of the world. The fact that Judy Miller may have held an opinion that you or I sharply disagree with doesn't make her a mindless pawn of Paul Wolfowitz.
3) This one is entirely subjective. The distinction between "protecting a whistle-blower and protecting a hit man" has become the mantra of the lefty blogosphere on the Miller-Plame case. It sure sounds good. But, hey -- who gets to decide which is which? Readers of Salon and the Daily Kos? Or readers of, say, the National Review and the Wall Street Journal? Does the country get to vote on it? If so, how confident are you that the results will be gratifying? The Wednesday edition of the Journal, in fact, features an editorial titled "Karl Rove, Whistleblower" which opines that in leaking Plame's identity to Time reporter Matthew Cooper, Rove exposed "a case of CIA nepotism" and "provided important background so Americans could understand that Mr. Wilson wasn't a whistleblower but was a partisan trying to discredit the Iraq War in an election campaign."
Is that editorial just a craven mouthpiece for GOP talking points? Yeah, sure -- according to you and me. But one man's whistle-blower is, almost by definition, another man's traitor -- and the distinction is almost always going to be political. Backing away from Karl Rove for a minute, there really are people who believe that the Iraq war was necessary for our safety and the stability of the Middle East, and therefore believed that supplying crucial context for Joseph Wilson's criticisms of the war was in the public interest. More important, it's hard to imagine any law that divides anonymous sources into different categories, based on their social usefulness or the purity of their intentions, that wouldn't be subject to gross political manipulation. Would we really have wanted to see Ken Starr, during the Lewinsky investigation, armed with the ability to imprison any reporter he felt like who'd had an off-the-record conversation with George Stephanopoulos or Sidney Blumenthal? A law that shields anonymous sources from police and prosecutors, outside of the most exceptional circumstances, is the best way to guarantee real freedom of the press.
2) First of all, it's not clear that any crime was committed. There remains debate about whether Valerie Plame was a classified undercover agent at the time she was employed at CIA headquarters. First Amendment attorney Bruce Sanford, who helped draft the 1982 Intelligence Identities Protection Act, has argued that the leaks about Plame to Miller, Cooper and Robert Novak do not technically violate the act. It seems likely, as Salon's Farhad Manjoo has reported, that special prosecutor Patrick Fitzgerald is pursuing nothing bigger than an obstruction of justice charge against the leaker(s). Such a "puny crime," Sanford told Manjoo, "really does not justify this incredible disruption of the relationship between reporters and sources."
But there's a far more important issue at stake. This sudden reverence for the letter of the law is, to put it mildly, a peculiar argument to encounter on the left. Civil disobedience -- the refusal to obey laws you believe to be morally wrong -- is among the most venerable of our traditions. To cite a highly relevant example, Daniel Ellsberg almost certainly broke the law when he leaked the Pentagon Papers to the New York Times. (He was indicted for numerous felonies far more serious than anything the Plame leaker is likely to face; the case against him fell apart under the enormous weight of the government's Watergate-era misconduct.) As it happened, Ellsberg's identity was not a secret. But if it had been, then under the logic put forward by numerous Salon readers, it would have been perfectly justifiable to compel the Times' editors to identify him or face prison. Is there a moral distinction between Daniel Ellsberg and Karl Rove? Sure, but both of them broke the law in the act of leaking information to reporters. How exactly do we enshrine that distinction in the law?
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