The gray area of press privilege

Dasu Krishnamoorty

Last week, Judith Miller went to jail for refusing to testify before a grand jury. Miller, who? The same Miller, star reporter of the New York Times, who brought cheer to the Bush administration by writing a series of articles on fictitious finds of weapons of mass destruction in Iraq that many believe and she admits provided the moral justification for Bush going to war with Iraq. The Times, even while acknowledging that her sources were unreliable, put her on a new UN assignment where she is doing the same thing she is good at. She and her newspaper maintain that she has a duty to defend the right of every journalist to respect the confidentiality of sources. This is their response to court summons to testify in a case relating to the outing of the identity of a CIA official. What is it that the court wants to ferret out and in what manner is it crucial to public interest?

The case against Miller has again a weapons background. Suspecting that Saddam Hussain was trying to buy uranium ore from Niger, the White House asked one of its diplomats Joseph Wilson to investigate. At that time, nobody knew that his wife Valeri Plame is a CIA official. Wilson wrote an op-ed article in the New York Times on 6 July 2003 claiming he was sent to Niger by the CIA to probe the uranium transaction and that he found no credible evidence of such a transaction. A week later Robert Novak, a conservative syndicated columnist, wrote in his column that Wilson was given the assignment on the recommendation of his wife Valeri Plame, who, he said, was working on weapons of mass destruction. Plame has since returned to her job after long leave and is now no more an undercover operative.

It is widely believed that the White House wanted to discredit Wilson for his negative report and consequently two of its top officials talked to journalists, Judith Miller and Robert Novak among them. This version has one of the two officials waiving his right to confidentiality in favour of all journalists, including Miller and Novak. Many CIA veterans, alarmed at the breach of security, wrote to Congress identifying the person who leaked the name and called for inquiry. A delegation of Democratic legislators met the Speaker and pressed for an independent inquiry. Some reports claimed that Karl Rove, political advisor to Bush, leaked the name to Cooper and Lewis Libby, chief of staff to Dick Cheney, revealed to Judith Miller. This is how the three journalists allowed themselves to be conduits for a leak.

Since it is a crime to reveal the identity of intelligence personnel, the Bush administration was compelled to name a special prosecutor to find out the source of the leak. Judith Miller and Matthew Cooper, chief of Time’s Washington bureau, were among several persons who were asked to appear before the grand jury for recording testimony because the prosecutor Patrick Fitzgerald claimed that his investigation was complete but for their evidence. Both of them refused, citing First Amendment privilege. Between the first Joseph Wilson’s Niger mission and last week’s conviction of Miller several players, big and small, uneasily trod the stage. Among them are six journalists who were taken into confidence by the source that leaked the identity of Plame. Nearly all of them, including Cooper, co-operated with the prosecutor. It was only when he was summoned a second time that Cooper refused to appear. The case in its two-year journey transformed from one relating to intelligence to one of journalistic privilege.

Refurbishing an image

Not many believe that Judith Miller has gone to jail to defend lofty principles of journalistic ethics. Two theories are in circulation in support of such skepticism. One: She is trying to achieve dubious and inexpensive martyrdom to retrieve her image sullied by WMD reporting. In this, she has the blessings of her newspaper. Supporters of the first theory are many including Howard Kurtz of the Washington Post and Rosa Brooks of the Los Angeles Times who wrote about their doubts. Fairly or unfairly, Miller and Cooper are seen by some as protecting high officials who carried on an act of tawdry revenge, wrote Kurtz. "It is possible (though not likely) that Miller is covering for a genuine whistle blower who fears retaliation for fingering, gee, Karl Rove for instance, as the real source of the leak," said Brooks. Rosa in her article explains the second theory by adding, "When you find yourself covered with mud, there’s nothing like a brief stint in a mi minimum security prison to restore your old luster." But the Economist is generous. It said, "Ms Miller stood up for her profession, refusing to talk, and will now become a martyr for it."

However, one crime does not absolve another. The reason for Miller’s incarceration is not her role in providing Bush the rationale to go to war or bad reporting. If she brought bad name to journalism, of course with some co-operation from her employer, she is not answerable to the prosecutor for that. Facts too do not readily yield an inference of guilt against Miller.  But the prosecutor’s case is that she had not co-operated with him in probing the source of the leak. That is a clear crime under law. Even if the journalists have a First Amendment right, that does not seem enough defence to deny help in tracing a breach of security. This is what led to divisions among journalists on whether their rights vis-a-vis the state are absolute and non-negotiable. Time is convinced that what happened did not constitute a leak at all and that the prosecutor was only trying to know if witnesses had made false statements.

But everyone is perplexed by the darkness surrounding summons to Robert Novak, the first person to publicize the name of Valeri Plame. Who told Novak? This is what the prosecutor was trying to find our. Obviously, Novak should be the first to be summoned and questioned. Was he summoned? No clues. It is this and the general stridency of the prosecutor that won some sympathy for Miller in the case. In an interview with Amy Goodman of National Radio, Harper’s publisher Rick Macarthur minced no words about it. "It does seem to be a case where they are taking care of their better friend, Robert Novak. And Novak, we can assume, co-operated with the prosecution, told the prosecutors who the leaker attempted to leak to, because obviously this was a reprisal to Joe Wilson’s column in the Times, his op-ed piece."

A New York Times editorial on 28 June remarked, "The justices should at least have been offended by the undue secrecy shrouding this case. Even the two threatened reporters and their lawyers were denied access to the prosecutor’s secret affidavits explaining his reasons for demanding that confidential sources be disclosed." The Wall Street Journal also said, "He (prosecutor) has never publicly disclosed, even to the two reporters and their attorneys, why he needs their notes." 

In his article Robert Novak wrote that two administration officials had told him that Joseph Wilson’s wife had suggested sending him to Niger to investigate reports about Iraq’ uranium deal. It is now public knowledge that the two officials are Karl Rove and Lewis Libby. Rove appeared before the grand jury two or three times and signed a general waiver authorizing reporters to testify about their conversations with him. Two years ago, Newsweek reported that Matthew Cooper had talked to Rove over the telephone. Rove’s lawyer later confirmed the conversation but insisted Rove did not disclose the identity of Plame. As a matter of fact, many journalists believe that Fitzgerald is gunning for the officials and not the journalists whose testimony he needed to know if the White House officials were lying to him.

Anyway, Cooper is now free after he had agreed to appear before the grand jury claiming that he had the permission of his source to do so. Time was not willing to pay a price for the freedom of its employee and told the court that it would submit all notes Cooper had made. Newsweek claimed that some of them indicate that Rove was the leaker. First Amendment advocates criticized Time’s move, saying that its editor-in-chief Norman Pearlstine, should have backed Cooper and refused to comply with the judge’s order. But Pearlstine asked, "If presidents are not above law, how is it that journalists are?"

Different Voices

More than 40 news organizations, including Bloomberg News, Dow Jones & Co. and the Associated Press, supported the reporters at the Supreme Court in court briefs. Although every state but Wyoming provides reporters some type of protection against revealing confidential sources in state cases, there is no such "shield" law for federal cases. As a result, more than 20 reporters have been jailed in the past three decades for refusing to reveal sources.

Lawyers and journalists spoke in different voices about the obligations of reporters to comply with final court orders in cases involving confidential sources. However, the fact is that the media have hurt their credibility in recent times by an overdose of unreliable and anonymous sourcing. "We`re in an era of great judicial skepticism regarding the reliability and professionalism of the media generally," said Rodney A. Smolla, dean of the University of Richmond School of Law. He said that that atmosphere made courts reluctant to recognize any special First Amendment protection. President of the bar association of New York City underscored the need for Congress to pass a federal shield law. Confidential sources are essential to newsgathering.

With the New York Times in the forefront, several newspapers wondered why Robert Novak was out of the net. They opposed judicial pressure on reporters to disclose sources. This, they felt, would undermine newsgathering and discourage newsgathering and whistleblowers. Noted columnist William Safire expressed concern for the assault on reportorial privilege. Joining him, Howard Kurtz said how impossible it was for reporters to report without meeting officials every day. Reporters Without Borders termed the court judgment as retrograde and freedom-curtailing.