Powered by TypePad

« A Shortage Of Paper And Ink At The Times? | Main | Accidents Will Happen - II »

February 16, 2005


creepy dude

Bad guess. Read the opinion.


Why can't you guys just let a by all accounts honest ethical Republican prosecutor do the job our by all accounts honest ethical Republican and Christian former Attorney General appointed him to do?


Well, as to "read the opinion", until the budget committee approves an upgrade, I am stuck with a PC that won't open that file (although I got to it last night on another machine).

However, if you have some excerpts addressing a particular point I made, I would love to see them.

And I am convinced, upon reflection, that the Editor and Publisher argument (Publish, don't perish) that Cooper should be safer because he *did* publish, is backwards.

Look, suppose Cooper and Miller got the leak together at the same meeting. Cooper thinks, gee, that might be illegal, I better hurry and publish it so I get the full protections of a reporter.

Miller thinks, gee that might be illegal, I better sit on it.

Per E&P, *Miller* should go to jail. Sure, that makes sense.

creepy dude

"...even though the potentially criminal act occurred with the leak, surely the harm to national security occurred with publication?"

A hypothetical then TM:

-a disgruntled rodscrubber steals the plans for a supersecret new bomb from Los Alamos and offers to sell them to an Iraqi agent. They meet. But-surprise-the Iranian agent is in reality undercover FBI and the treasonous rodscrubber is carted off to jail. The plans remain secret and uncompromised.

At his trial-could the rodscrubber argue that he did not in fact harm national security as the plans were never revealed?

P.S. since you (via EnP) and CT have noted Judge Tatel is a Clinton appointee, please note Judge Sentelle is a Reagan appointee who assumed the seat vacated by Justice Scalia.

creepy dude

Ok-now hypothetical 2. The FBI suspects that the rodscrubber has been making calls seeking to sell the plans, and believes the rodscrubber made calls to Cooper and Miller.

In fact, Cooper later writes a story that says there's a rodscrubber seeking to sell bomb plans, but Miller never publishes anything.

The rodscrubber denies everything. So the FBI turns to the reporters.

Should Miller and Cooper be forced to reveal whether they ever talked to the treasonous rodscrubber, and if so, what was said?

creepy dude

Ok hypothetical 3. The rodscrubber is Dick Cheney.


creepy dude,

On hypothetical #1:
"At his trial-could the rodscrubber argue that he did not in fact harm national security as the plans were never revealed?"

No he couldn't. The law doesn't make a distinction between trying to do something and succeeding at it. There are no brownie points for incompetence.

On hypothetical #2:
"The FBI suspects that ... the rodscrubber made calls to Cooper and Miller."

It might be seen as being in the public interest to force them to reveal his name. However, should they be punished because he called them? I can't see that that's justice.

On hypothetical #3:
The rodscrubber is Dick Cheney.

Dude, Haliburton like owns all the like nuclear bombs in this country. Don't they? [/sarcasm]

creepy dude

TM-you might enjoy this part of the opinion (J. Sentelle writing-that's the Reagan appointee btw):

"Are we then to create a privilege that protects only those reporters employed by Time Magazine, the New York Times, and other media giants, or do we extend that protection as well to the owner of a desktop printer
producing a weekly newsletter to inform his neighbors, lodge brothers, co-religionists, or co-conspirators? Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical “blogger” sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not? How could one draw a distinction consistent with the court’s vision of a broadly granted personal right? If so, then would it not be possible for a government official wishing to engage in the sort of unlawful leaking under investigation in the present controversy to call a trusted friend or a political ally, advise him to set up a web log (which I understand takes about three minutes) and then leak to him under a promise of confidentiality the information which the law forbids the official to disclose?" pg. 6

Please note Judge Sentelle calls the leaking "unlawful." Is he getting ahead of himself? Or just making things up?

Jay-I agree re: #1-point being if a criminal leaker can't get his leak published, it's still a crime.

But on #2-don't forget that Miller and Cooper are tools not targets. They shouldn't be punished for getting a leak; they should be punished for refusing to reveal the source of the leak.

Cecil Turner

Well, I don't agree with CD on much, but in this case I'm with him. As Wilford Brimley put it: "The First Amendment doesn't say that, counselor...the privilege doesn't exist."

Not that I'm convinced there's a crime here, in fact I suspect there isn't. Nor does it strike me as a huge national security issue (Plame was at best marginally encompassed by the covert agent statute, and her own and her husband's actions appear largely responsible for her cover being blown). But there certainly could have been--there's plenty of evidence to support an investigation. And there's no way to get to the bottom of this, or any "leak" case, without interviewing those involved and figuring out who told what to whom. Which in this case includes Miller, Cooper . . . and Novak.


As to (1), my (underemphasized) point is that sure, if we want to punish Ms. Miller as a regular spy, go ahead. But then the court should not be arguing about some balance of public good (Unchilled reporters) versus public harm (espionage).

(And maybe they are not, but the Times account sure says so).

Anyway, I snuck in the same qualifier twice:

We will agree that the potential crime is the leak, not the publication.

so that I could weasel away from Creepy on this point later.

If the focus is the crime, publication is irrelevant; if the focus is the harm, it is. So a court may judge whether Ms. Miller, or an unhappy rodscrubber, are security risks in their own, unpublished states separately from what to do about it.

creepy dude

CT agrees me with me? Whoa. I'm going back to DailyKos before I lose more credibility. Just kidding-cheers mate.

TM-I have no interest in prosecuting Miller as a spy-just getting her to talk. In those hypotheticals-the rodscrubber is the leaker, not Miller.

Miller hasn't hurt national security in any way re: Plame I agree. But apparently she has information-and she has to give it up.

creepy dude

Oh yeah-before I go: IMPEACH BUSH NOW!


Here is the main opinion's extract on the common-law argument:

B. The Common Law Privilege

Appellants argue that even if there is no First Amendment privilege protecting their confidential source information, we should recognize a privilege under federal common law, arguing that regardless of whether a federal common law privilege protecting reporters existed in 1972 when Branzburg was decided, in the intervening years much has changed. While appellants argue for an absolute privilege under the common
law, they wisely recognize the possibility that a court not recognizing such an absolute privilege might nonetheless find a qualified privilege. They therefore also argue that if there is a qualified privilege, then the government has not overcome that qualified privilege. The Court is not of one mind on the existence of a common law privilege. Judge Sentelle would hold that there is no such common law privilege for reasons set forth in a separate opinion. Judge Tatel would hold that there is such a common law privilege. Judge Henderson believes that we need not, and therefore should not, reach that question.

However, all believe that if there is any such privilege, it is not absolute and may be overcome by an appropriate showing. All further believe, for the reasons set forth in the separate opinion of Judge Tatel, that if such a privilege applies here, it has been overcome. Therefore, the common law privilege, even if one exists, does not warrant reversal.

Now, to recap a bit - I am firmly on both sides of this - in a recent post, I said that this spectacle had to play out, and an early dismissal because the ocurrence of a crime could not be proved was insufficient.

However - this common law argument was a new wrinkle for me and seems to give Ms. Miller oxygen, although I see now I have to find another opinion to find out why/why not. Currently, I have no help for Mr. Cooper.

Geek, Esq.

There are two issues: The existence of a qualified privilege, and the scope of that qualified privilege.

This opinion, quite frankly, blows. They're essentially articulating a standard for a privilege which they're not sure even exists. Well, one judge thinks it exists, while another isn't sure and the third thinks doesn't exist.

Got that?

Like making sausage . . .


"Or, in weighing the "chilling effect" of jailing reporters versus harm to national security, did the judges conclude that our national security was equally harmed by (a) Mr. Cooper printing his story in TIME, and (b) Ms. Miller carrying this secret around in her head?"

Huh? Can the answer be neither?

The harm to National Security was when NOVAK published the story - not when Cooper published his or when Miller carried the secret around in her pretty little head.

So you weigh the damage done by NOVAK publishing against the chilling effect on reporters looking into the Novak publication.


Al-you'll weigh nothing and like it.

The harm was the leak, not the publication. See both TM and the Creep's Hypo 1 above.

The Clinton appointee came up with the weigh test. So we weigh journalitic privilege to not testify versus harm done by the leak. he weighed it and found them wanting.

The Reagan appointee says no privilege exists period. The judiciary is becoming increasingly Republican.

There is no privilege.


I don't buy forcing Fitzgerald to make his case as a precondition to gathering evidence. A bit backwards, that, no? Specifically, he may feel strategically that he needs something from Miller or Cooper before he can close in on the bigger fish.


Crank, no, it would appear that Fitzgerald needs to know who leaked (and when) to Miller and Cooper to determine if a crime was commited--and/or where to proceed next with the inquiry.

Making the case as a precondition is to ensure that all other paths of inquiry have been pursued--that the identity of the leaker can be confirmed no other way. Also to ensure no fishing expedition is going on. It does provide some protection to press freedom.

As to the national security implications--not really a factor in this decision. The dispositive case rejecting any first amendment privilege was a hashish (drug) case--a pretty low bar.

The judges seem to pretty strongly agree that a grand jury's right to know direct evidence regarding an alleged crime is in the public policy interest.


I am loving this from the opinion:

At the same time, I am far less eager a federal common-law pioneer than Judge Tatel as I find less comfort than he in riding Jaffee v. Redmond, 518 U.S. 1 (1996), into the testimonial privilege frontier.

Ride to the sound of guns, Tatel!

Anyway, Al, as to the possibility that Cooper's decision to publish harmed national security even though Novak had already published - I guess a court would have to imagine that adding the distribution and credibility of TIME to the mix promoted the story and increased the likelihood that foreign intel services (a) became aware of it; or (b) acted on it.

Now, I am not in love with that thought - one might think that intel agencies would have picked up the Novak column and been off to the races. And one might wonder whether it means that the third reporter, or the tenth, or the hundredth to report this *based on a direct leak* gets a pass.

Well, it will be a weird test, as to who is covered, and under what circumstances.

One judge says a common law test was rejected in 1972 Branzburg, a second says the common law changes (I can buy that), and I am eagerly working my way toward the third.


Ahh, now I see where Tatel lets me down. This is Henderson writing:

While Judge Tatel makes the centerpiece of his test the balancing of “the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value,” see Tatel Slip Op. at 21...

Well, "the harm" seems to be broadly distributed, here. "If there was harm, everyone talks, even folks who did not actually contribute to the harm" would be the rule.

Well, that is not crazy. If I witness a murder, I can't argue that my testimony is irrelevant because I did not pull the trigger or load the gun.



Now, in Tatel's section, he explains that the Congress posted a "Judicial Activitists Wanted" sign on this:

Congress enacted Rule 501 of the Federal Rules of Evidence, authorizing federal courts to develop evidentiary privileges in federal question cases according to “the principles of the common law as they may be interpreted . . . in the light of reason and experience.” Fed. R. Evid. 501; see also Pub. L. No. 93-595, 88 Stat. 1926 (1975). Given Branzburg’s instruction that “Congress has freedom to determine whether a statutory newsman’s privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned,” 408 U.S. at 706, Rule 501’s delegation of congressional authority requires that we look anew at the “necess[ity] and desirab[ility]” of the reporter privilege—though from a common law perspective.

Under Rule 501, that common lawmaking obligation exists whether or not, absent the rule’s delegation, Congress would be “the more appropriate institution to reconcile the competing interests . . . that inform any reporter’s privilege to withhold relevant information from a bona fide grand jury.”

And a bit further, he says the Supreme Court supported this:

As the Supreme Court has explained, “Rule 501 was adopted precisely because Congress wished to leave privilege questions to the courts rather than attempt to codify them.” United States v. Weber Aircraft Corp., 465 U.S. 792, 803 n.25 (1984).

And here is a little pearl for everyone on the Non-Reality Based Community who distrusts all those liberal academics "proving" this and that:

...following the wise precept that common sense need not be “the mere handmaiden of social science data or expert testimonials,” Amatel v. Reno, 156 F.3d 192, 199 (D.C. Cir. 1998),...

A bit more on whther the common-law has developed:

....so here undisputed evidence that forty-nine states plus the District of Columbia offer at least qualified protection to reporters’ sources confirms that “‘reason and experience’ support recognition of the privilege,” id. at 13. [p. 55 of .pdf]

He also notes thatJustice Dept. guidelines recognize a journalist distinction, even though that does not create an enforceable right, and says:

Denial of the privilege, then, would not only buck the clear policy of virtually all states, but would also contradict regulations binding on the federal government’s own lawyers.

I can stop anytime: This is his summary of Tatel's view:

In leak cases, then, courts applying the privilege must consider not only the government’s need for the information and exhaustion of alternative sources, but also the two competing public interests lying at the heart of the balancing test. Specifically, the court must weigh the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value. That framework allows authorities seeking to punish a leak to access key evidence when the leaked information does more harm than good, such as in the nuclear weapon and military strike examples, while preventing discovery when no public interest supports it, as would appear to be the case with Miller’s Osama bin Laden articles.

OK, I get it - start with "Loose Lips Sink Ships". Mr. LooseLips, a Government official, has harmed national security with a leak. We the People want to prosecute him, for punishment and deterrence reasons.

Ms. Miller, although she did not increase the harm by also publishing, has evidence that will help in the important cause of finding Mr. LooseLips. Therefore, although she did not publish, she must give evidence.

OK. From which it follows that I was wrong. Bah.


TM: If I understand the decision, the only place for an appeal to the Supreme Court regards the issue of a qualified privilege. All three judges answered that there wasn't, but coming to that finding three different ways.

If I may: (After writing a couple paragraphs, I found the money graf in their opinion, which is far better than I could put it.)

From footnote #2 in Henderson's concurrence:

"There are, however, only three ways of answering whether these reporters' confidential source information is protected by a federal common law privilege: (1) there is no privilege, (2) there is an absolute privilege and (3) there is a qualified privilege. None of us, including the reporters in their brief, would choose door number two,...and only one of us heads for door number one, see Sentelle... That leaves door number three. But in choosing this route, the critical question is not definitional, as Judge Tatel sees it,..., but qualitative: Is the Special Cousel's evidentiary proffer sufficient to overcome any qualified privilege that may exist? Because we agree the answer is "yes," there is no need for us to go any further. Granted, the circumstances of the cited cases differ but they use the same analysis. Moreover, its application here is consistent with the tried and true principle that "[w]here...no harm results from our failing to answer a question,...the doctrine of judicial restraint provides a fully adaquate justification for deciding they employ two divergent forms of "wide-angle adjudication."...Judge Sentelle would hold that a reporter enjoys no federal common law privilege to refuse to provide a bona fide grand jury with relevant documents and testimony while Judge Tatel would fix the contours of a qualified reporter's privilege by using a novel multi-factor balancing test only to conclud that it helps these reporters not at all." [references and citations omitted--Forbes]

My take: Judge Henderson is providing a summary of their analysis--an "out"--so the Supreme Court need not hear an appeal.

And I presume this was what Geek referred to as sausage making...

Geek, Esq.

You are correct, sir.

creepy dude

So let's summarize what we can glean from the opinion of three judges who have seen what Fitzgerald has:

Henderson: says Fitzgerald's evidence to date is sufficient to overcome any qualified privilege that may exist.

Sentelle: calls the leaks "unlawful"

tatel: calls the leaks "irresponsible" and "possibly illegal."

Dick Cheney must know how it feels to be a mallard.


Well, we all know that C-dude feasts on foi gras, but I think he's getting ahead of himself.

Sentelle uses the qualifier of "unlawful" in a hypothetical privilege senario regarding web logs.

And Tatel's full phrase (I think more precisely) is: "..., perhaps recognizing the irresponsible (and quite possibly illegal) nature of the leaks at issue,..."

Tatel also refers to Plame as an "alleged covert agent," thus, again leaving unanswered the question of whether a crime has been committed. (And of course, that's not a question before them.)

Myself, I don't like foi gras, so if C-dude get's his wish, he can have my share.

Cecil Turner

"Sentelle: calls the leaks 'unlawful'"

Sorry, but that's simply not true. He's clearly discussing a means of avoiding prosecution for a hypothetical criminal, not the Plame case--nor does he make any claim that the leaks have been proven unlawful, but characterizes them as "under investigation":

Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical “blogger” sitting in his pajamas . . . If so, then would it not be possible for a government official wishing to engage in the sort of unlawful leaking under investigation in the present controversy to call a trusted friend or a political ally, advise him to set up a web log (which I understand takes about three minutes) and then leak to him under a promise of confidentiality the information which the law forbids the official to disclose?
"tatel: calls the leaks 'irresponsible' and 'possibly illegal.'"

The recent election likely cost Tatel a Supreme Court nomination. I'd suggest he might be just a bit miffed by the way things worked out, and perhaps is providing just a bit of excess color.

Cecil Turner

Ooooh, I hate getting beat to the punch. Better learn to type faster. Cheers, Forbes.


CT: By occupation I've become a professional document reader (well, that's not my real title or profession, but you get the gist.) And as such--in my particular industry--you need to learn to read between the lines, so to speak, it's not always what's said, but what goes unsaid--what's left out. These judicial opinions are written to be as narrow and straightforward as possible--even if it looks like sausage making--so there is as little misunderstanding as possible.

And that's why I speculated about what Judge Henderson was doing in providing the little footnote summary explanation. It had very little to do with the decision, but made it clear should the appellants care to appeal, they would likely be denied--having provided the SC with the necessary analysis. Other than the 9th Circuit, appellate courts hate to be overturned. (But then you knew that.)

CT, I'm sure you can type faster than I--most people can. Right back at you!


So what I am taking from this is that two of three judges accept the concept of a qualified privilege, but don't see it as overcoming the prosecutor's "need to know" in the present case. Consequently, the plaintiffs can not appeal on the basis that the judges are split in a meaningful way.

OK, a longshot - suppose we go back to the "drag in Cliff May" idea, put him on the stand, and have him tell us that "everyone knew" about Val and Joe.

Can they then argue that the harm caused by one specific leaker is actually much less, and catching this leaker much less urgent, since it was a semi-open secret anyway? And that, therefore the judges were wrong about the threshold for a qualified privilege not having been met?

Or is it past time for new evidence? (I think it is).

Well, then, let'em talk or go to jail. If the press wants to spend a year screaming that this crime was an outrage against all humanity, they ought to help solve it. And if that deters others from committing crimes against humanity, well, good.

Cecil Turner

"So what I am taking from this is that two of three judges accept the concept of a qualified privilege, but don't see it as overcoming the prosecutor's "need to know" in the present case."

Whether you agree with Sentelle or not (I do), ISTM he's on the most firm ground where he suggests that creating a privilege, in contravention of clear Supreme Court precedent, would be the province of the Supreme Court.

"OK, a longshot - suppose we go back to the "drag in Cliff May" idea, put him on the stand, and have him tell us that "everyone knew" about Val and Joe."

"Longshot" seems apropos. That in effect would demand the prosecutor prove his case while withholding part of his evidence. Besides, the "everyone knew" defense has a more specific requirement that suggests cocktail-party gossip wouldn't be sufficient:

(a) Disclosure by United States of identity of covert agent
It is a defense to a prosecution under section 421 of this title that before the commission of the offense with which the defendant is charged, the United States had publicly acknowledged or revealed the intelligence relationship to the United States of the individual the disclosure of whose intelligence relationship to the United States is the basis for the prosecution.
And I think your bottom line is spot-on.


TM: Let me short cut the bottom line here. What the press is asking for in even a qualified privilege is something not available to an attorney regarding their privileged communication with a client. Inasmuch as the attorney has an ethical and professional obligation regarding direct knowledge of a crime, contrasted with the concept of attorney-client privilege as sacrosanct, nonetheless, the attorney is required to be forthcoming--and forthwith--not merely upon receipt of a subpoena.

Is the press entitled to be beyond the reach of the long arm of the law? I think not, and so rather clearly does this court.

I think what I said above, "The judges seem to pretty strongly agree that a grand jury's right to know direct evidence regarding an alleged crime is in the public policy interest." is an apt description of where they come out on the dilemma--whether it's viewed as some sort of balancing act, or not. (Which merely appears to be the flexing of some grey cells by Tatel.)

And if you haven't had a good enough laugh over this issue, check out David Weston's op-ed in the WSJ today (Friday-subscription-but might be posted over the weekend on OpinionJournal). His argument can best be summarized as he thus states: "This appears to be a case of a government unable or unwilling to take the steps it needs to police its own senior officials and, when caught, taking it out on innocent journalists simply trying to do their job." (The simple rebuttal is that press freedom is an individual right, not an institutional or occupational right.)

In other words, the press has the right to allege that government has committed crimes, but don't come around asking them to provide the facts. He implores us that the government's case against Miller and Cooper is "just about the weakest case." I would suggest Weston has made just about the weakest argument possible.

Let me go out on a limb--much as I know some posters will disagree with my view, here it is. The way the press has behaved, oh, since about January 20, 2001, suggests that no crime was committed. The press needs an unanswered question to continue to flog, so as to pound the administration over any other policy with which it disagrees. Investigated and disposed of, whatever the outcome, results in the disappearance of this storyline. Sad, but true, IMO.

The comments to this entry are closed.