Let's Trounce William Safire

William Safire returns to argue in favor of Times reporter Judith Miller and a reporter's shield law.

He makes a concealed reference to the reporters in the Wen Ho Lee case, who are protecting government sources that apparently felt the government's normal powers of subpoena and arrest were insufficient, and decided to try Dr. Lee in the press.

A free and inquiring press can be a check on government power, or an extension of it - the Wen Ho Lee case does not look like an example of the sort of leak we ought to be protecting.

MORE:  As to the Plame case, I agreed with the NY Times before they did - I doubt there is a criminal case here.  However, I fail to see why we should be worried about protecting the right of Adminstration officials to put their stories forward anonymously - it is not as if the White House currently lacks for power.

That said, a cogent theory of the information flow in the Plame leak was provided by Cecil Turner in a comment at the Beldar blog - briefly, a State Dept. / INR fellow met both Valerie and Joe at the fateful meeting where Ambassador Wilson was selected to go to Niger.  He later presented this connection for the edification and education of the curious higher-ups in State who wondered who this Joe Wilson was, and why he was writing in, and leaking to, the Times.  Regrettably, the INR staffer had not been apprised of Ms. Plame's covert past, and here we are.

MORE:  Kevin Drum makes the case for a reporter shield law; Mark Kleiman tells us that "I'm not against some protections for the newsgathering process, but I think a generalized "reporter-source privilege" goes way too far".  Mr. Kleiman also buries William Safire - I embrace his spirit, although I would dispute some of his assertions.

Comments

[jeff]

There is NO source. The only possible source is Plame's husband. If the reporter can emabaress the President, by naming an administration figure, she would have done so, by now. There is NO source. The NYTimes is aware. Rot in jail or confess.

[Warmongering Lunatic]

Like any other professional group (lawyers and doctors come to mind first, but see also teachers, plumbers, and a vast array of others), the journalist profession has tried to establish itself as a privileged class. This has included not just efforts to gain immunity from the duties of other citizens, but through "campaign finance reform" an attempt to make itself the exclusive mediator of policy questions. Like any other class seeking privilege for itself, it will not make a bare assertion that it deserves special treatment for its own sake, but instead makes the claim that the public good is both dependent on the group having such privileges and dependent on such privileges being limited to the group.
William Safire, as a member of the class, is of course in favor of privileges for his class.

Unfortunately for the journalist profession as a privieged class, it is unable to establish exclusive professional licensing like the other professions, as such is seen in the current judicial climate as a burden on the exercise of First Amendment rights. As a consequence, its privileges cannot be kept exclusive; if journalists cannot be separated from the general public, they cannot be given rights the general public is excluded from. Accordingly, privileges for reporters are legally and logically untenable.

However, of course the journalist professtion will still loudly claim the vital need for those privileges, and attempt to maintain professional exclusion by attacking attempts by outsiders to compete with the class (see its reactions to Rush Limbaugh/talk radio, Fox News, NRA News, Jeff Gannon, and bloggers). After all, self-interest is a powerful motivation, and as the persistence of Marxist ideology has shown, human beings in general do not allow their desires to be bounded by logic or reality.

[Geek, Esq.]

Of course, in seeing the State Department, one wonders whether there's a connection with Darth Bolton.

[Neo]

Rest better at night knowing that at least one WMD analyst is not working at the CIA in his/her former capacity. Valerie Plame paid the price for all the lousy analysis rendered by the WMD groups at the CIA for the past decade when they were "all wrong.".

As they used to say on Hee-Haw ... Salute !

[SteveMG]

Joshua: "Surely, it will come tomorrow. We'll wait."

Kevin: "For what?"

Joshua: "For it."

Kevin: "It? What's it again?"

Joshua: "That which will get him. And save us."

Kevin: "But we've waited before."

Kevin: "It never came."

Joshua: "Tomorrow. Wait for tomorrow."

Kevin: "And if it never comes?"

Joshua: "Tomorrow. Just wait. It will come."

Joshua: "Tomorrow."

[Amok92]

Master Dick: "Surely, it will come tomorrow. We'll wait."

Chimpy McFlight Suit: "For what?"

Master Dick: "For it."

Chimpy McFlight Suit: "It? What's it again?"

Master Dick: "It is the 'last throes'. And it will save us."

Chimpy McFlight Suit: "But we've waited before."

Chimpy McFlight Suit: "It never came."

Master Dick: "Tomorrow. Wait for tomorrow."

Chimpy McFlight Suit: "And if it never comes?"

Master Dick: "Tomorrow. Just wait. It will come."

Master Dick: "Tomorrow."

[BumperStickerist]

~ insert link to picture of a US Hellfire missile aimed with the word 'Godot' written on it ~

[narciso]

I find this whole line of argument, unconvincing taking into account the behavior of Jason Vest, who unveiled
the new Ops chief in his staff, Victor Simpson, of the
AP, and Tracy Wilkinson of the LA Times, who have un-veiled the name and description of the Milan station
chief; a prima facie violation of the "Phillip Agee
Prevention Act", even though some accounts, referred
to here; indicate he was originally blown by Aldrich Ames;http://aolsearch.aol.com/aol/redirsrc=websearch&requestId=89ea845913db5b7c&clickedItemRank=1&userQuery=lady%2C+robert+seldon&clickedItemURN=http3A2F2Fcryptome.org%2Flady-eyeball.htm&title=Eyeballing+%3Cb%3ERobert%3C%2Fb%3E+%3Cb%3ESeldon%3C%2Fb%3E+Lady: Ironically these
are the same courts and judges that recently acquitted
a group of Iraq-bound insurgents

[Aaron]

I can't believe Steve MG and Amok...they are both classics.

[Al Maviva]

Bumperstickerist -

Oh.

[davod]

The problem with privelage is that it infers a legal right. The expectation is that the user is bound by rules. It is clear that there are no rules followed by journalists when it comes to leaks from government sourcs. If you have no guidelines how can you grant a privelage.

[Black Jack]

Journalists are salesmen, pure and simple. They gather raw information, process it, and sell it to the public. They are no more entitled to special privilege than green grocers or butchers. Consequently, reporters are no more authorized to confer unconditional anonymity on "unnamed sources" and in the process, immunity on themselves, than a butcher is allowed to conceal the origins of his bacon. Truth in both advertising and packaging works best for all of us.

Let all reporters be on notice, use an unnamed source and be prepared to produce that source or go to jail. There is no other way to ensure honest reporting.

[Joe Mealyus]

Kleiman's summary paragraph is lovely:

"The fury of Safire and other journalistic friends of the White House at the persistence of the special prosecutor (in the face of the able stalling effort by the potential defendants, helped by the media companies) suggests just how high the stakes still are. Clear evidence that BushCo betrayed a true national security secret for political gain would shatter the Administration's pretense to be the repository of patriotism, and right now they don't have much else left that helps hold on to centrist voters."

I especially like Safire's "fury" (instead of the traditional "desperation") and the way "media companies" gives you that little flavor of conspiracy or bad faith that "media" alone would not. It must have rankled to not be able to use "vital national security secret," so that "true" is a brilliant tone-sustaining alternative. Finally "shatter the Administration's pretense to be the repository of patriotism" is poetry - with all those t's and p's crashing down, the final release from a slight contact with reality to having no grip at all is achieved seamlessly.

[Cecil Turner]

Color me unimpressed with Safire's logic:

What evidence of serious crime does he have that makes the testimony of Judith Miller of The New York Times and Matthew Cooper of Time magazine so urgent?

The crime alleged is a surreptitious leak, and the leaker is protected by the Fifth Amendment. If the person leaked to is protected by "reportorial privilege," it's hard to see what other evidence the prosecutor could have (and how he could properly investigate, let alone secure a conviction. In any event, the Supreme Court has spoken (by not speaking), and it looks like Times Inc. may be
getting ready to fold. Cooper didn't seem terribly stressed about them turning over his notes so he didn't have to go to jail (note the less-than-strenuous objection):

"Now they've got a decision to make, and I've got one," he said. "A corporation is not the same thing as individual. They have different responsibilities and obligations and there is no dishonor obeying a lawful order backed with the force of the Supreme Court of the United States. I prefer they not hand over documents that disclose the identity of my sources, but that's their decision to make." [emphasis added]

And for all the apparent assumptions by Kleiman, Safire, et al, it's by no means assured that the source is an Administration official. If not, I predict an epidemic of schadenfreude.

[creepy dude]

Ah-but if it's not-why did Ashcroft recuse himself?

[creepy dude]

There's a there there.

[Forbes]

I am constantly amazed at the reporters and columnists who mount their high horse and proclaim a right to impede a criminal investigation by protecting someone who has violated the law. Shield laws work to encourage leaks (which some could argue are a net positive), but they also encourage manipulation of news stories (by remaining anonymous). And as we've recently learned from the identification of Deep Throat, there's no investigative journalist hard at work--more like a big sham--while reporters are spoon fed the leaked information. (They protected a felon as part of their reporting.)

In this case, I don't think a crime has been committed under the relevent Act (my speculation), it's the disclosure that is the crime, not the publication.

I think the public interest in upholding criminal laws by thorough investigation far supercedes any journalistic need to protect criminals by the use of anonymous sources. Otherwise journalists become complicit--conspirators--in the crimes.

Robert Novak, Judith Miller--and Safire, for all I care--can go to jail, if they want to shield alleged criminals from investigation and prosecution.

CT: There is no question, given all the noise of consipiracy, cover-up, secrecy, and criminal allegations, that the finale will be a huge let down for all those that were blowing smoke at the outset. I can't wait to see Fitzgerald's final report detailing the emptiness of this story. Yet the Bush bashers will carry on, inventing more of the same--as in baseball, it sucks when you can't bat your weight!

[Forbes]

Wishful thinking creepy. The story has no legs, not even stumps. All the reporters know it. If there was blood in the water, this story would never left page one. As it is, it's turned into crocodile tears for shield laws, boo hoo!

[creepy dude]

-the finale will be a huge let down for all those that were blowing smoke at the outset-

Just like finding no WMDs was for the war-hungry?

[Gerry]

Tom,

The issue here is if the reporters are to be compelled to disclose their source to a grand jury. Grand jury proceedings are secret. If the source that Miller and Cooper are trying to avoid disclosing did not commit a crime, then it is likely, is it not, that the source’s identity will remain secret. (If any legal-eagles out would correct me if I am wrong, I would appreciate it). In this case, there would be no harm done to the relationship between the press and their sources.

If, on the other hand, the source did commit a crime, why on earth should they be protected? Let’s imagine that the Unibomber had contacted a member of the media and had revealed his guilt long before his brother had turned him in, and had done so in order to give some background to get his side of the story out. Would we really want to say that the reporter in question had any sort of obligation to have kept his identity secret, or a constitutionally protected right to do so? I would certainly hope not.

Or is the press trying to claim the right or privilege to decide which crimes are significant enough to override this obligation?

[Forbes]

Another myth creepy. As Cecil Turner has cited many times from the Kay and Deulfer reports, WMDs and WMD capabilities were uncovered in Iraq. (Most people can keep up with all this information, but I guess Bush bashing blinders prevents sight of the facts. This is old ground, and I'm not gonna cover it, yet again.)

Speaking for myself, Saddam's violation of the terms of the 1991 Gulf War cease fire agreement was sufficient grounds, in 1998 (the ILA), to prosecute regime change. Since Saddam did nothing subsequent to 1998 to cure his non-compliance, the US had every authority to resume the 1991 conflict.

But then this thread is about Safire and shield laws, and I don't know anything about the so-called war-hungry. Perhaps you'll inform us as to your expertise regarding the war-hungry?
;-)

[SteveMG]

Gerry:
"If, on the other hand, the source did commit a crime, why on earth should they be protected?"

The argument by the press is that, inter alia, sometimes whistle-blowers who reveal or talk to reporters about government mis- or malfeasance are themselves breaking the law when they reveal that information to the press.

This issue, obviously, is about more than just the Plame controversy. In fact, the Plame contretemps is probably a bad example for the press to fight over.

We can bring up again the case of Mark Felt although we'll have to emend the details somewhat. It appears that Felt broke a number of laws when he revealed grand jury information to Woodward. Now the problem with the Felt example is that the FBI/Sirica et al. were NOT covering up the lawlessness of the W.H. So, Felt was not revealing corruption on the part of the investigators.

But we can imagine a situation where a prosecutor is not aggressively investigating government illegality. He's been bought off or he's a political hack. Someone in his or her office blows the whistle to the press about the coverup. But the information provided is privileged or protected by secrecy laws.

What is Sirica had been bought off as well? Or the FBI agents who _were_ aggressively investigating the coverup?

Should the whistle blower be prosecuted? If so, what will be the consequences for future whistle blowers?

As I said, this case is a poor one for the press to rally around. And it looks like they decided to retreat to fight another day.

SMG

[Gerry]

SMG,

"The argument by the press is that, inter alia, sometimes whistle-blowers who reveal or talk to reporters about government mis- or malfeasance are themselves breaking the law when they reveal that information to the press."

Which leads to how I ended my post--

"Or is the press trying to claim the right or privilege to decide which crimes are significant enough to override this obligation?"

It sounds like you are saying that, yes, that is what the press is arguing.

Do you think they should have that sort of discretion? Who provides oversight to ensure they aren't abusing it (if they should have it at all)?

[creepy dude]

Forbes-yeah I'm familiar with CT's parsing of the reports. Here's all the proof I need:

Bush didn't mention WMDs once in his "major address" last Tuesday night. NOT ONCE! Now if he had anything to point too for the slightest vindication-you don't think he would mention it? He mentioned Osama bin Laden even, obviously he was a drowning man clinging for straws.

It's like chartering a boat for Marlins and coming back to the dock with a sardine. When they ask what you caught at the dock, you don't beam and pose for photos with your little old sardine. Not even Bush would sink so low.

Yeah you point me to your little Duelfer report sardine, and like all sardines, it stinks.

[Cecil Turner]

"Forbes-yeah I'm familiar with CT's parsing of the reports."

By all means, parse it yourself. If you find a way to get them to support the "No WMD" statement, I'd love to see it.

"Yeah you point me to your little Duelfer report sardine, and like all sardines, it stinks."

If you lot weren't so intent on making an obviously counterfactual "no fish" claim, then it's unlikely anybody would be pointing at the sardine.

[SteveMG]

Gerry:
Great questions; you've gotten to the heart of the problem. Viz., the power given to the press to report on government malfeasance can also be abused by the press (or government through the press) to _help_ assist in government corruption.

Anyway, my guess is that as a general rule the press would say, "Yes, when anonymous sources are given confidentiality that that agreement cannot be broken even if the source is breaking the law."

I think the question is a better one for us the citizens. Should WE grant the press some sort of exemption a la lawyers, doctors, priests when it comes to confidential information?

Tough call but I'd have to say yes. I'm more sympathetic to the press on this one than most people; at least the ones posting here.

Tougher call is drawing lines around this exemption. After all, I guess we're both journalists now that we're posting here. Hmm, I guess this means I get to meet Laurie Dhue? Yummy. You can have Helen Thomas.

Judge Alex Kozinski once called the Second Amendment the "doomsday provision" which is designed:

[F]or those exceptionally rare circumstances where all other rights have failed--where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees-- however improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

What happens when - however improbable - the government is systematically abusing its powers? Not perhaps overtly but covertly? Not to the degree Kozinski describes above, but more secretly? Where the only sources to reveal the corruption are inside the government? But revealing the abuse leads to prosecution for violation of secrecy laws? We can all imagine multiple scenarios where it's vital that a source not be forced to reveal his or her identity.

Instead of "doomsday provisions" maybe we can talk about "failsafe provisions" that can be used to check government abuse. This is one of them.

SMG

[Gerry]

SMG,

Thoughtful reply, and I appreciate your perspective, even if I do not hold it.

Let Congressand the state legislatures-- the elected representatives of the people-- decide what are crimes and what are not. If they pass legislation making the leaking of certain things to be a crime, and that law itself passes constitutional muster, then let them decide if the law should have an escape clause for whistleblowers. The legislature is the proper place for the deliberations over if something is important enough to provide, or not, such a provision.

I'll put my faith in the grand jury system. Let a small group of citizens hear the facts and decide if there is a crime according to the laws enacted. If so, then proceed to a trial and let the facts come out. If not, then so be it.

The press is not elected to make these determinations, nor are they so empowered by the Constitution.

The law right now says that there may have been a crime committed. The law right now says that the state can compell the journalists to reveal what they know. If we don't like that, we should elect different legislatures to enact different laws.

[creepy dude]

Ok CT-I admit it. Bush started the war over sardines.

[Harry Arthur]

Amendment 1: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Gerry, note that "the freedom of speech, or of the press" are essentially coequal rights that cannot be "abridged." Obviously, as with speech, there are limitations to this right, e.g., slander. My take, however, is that "freedom of speech" and "freedom of the press" are two of the most fundamental inalienable, constitutionally recognized rights that serve to shine the light of truth on our government.

Freedom of speech and of assembly protect free expression of unpopular ideas and freedom of religion prohibits the government from interfering with religious expression. All limitations on the power of government.

The founders arguably did not trust unfettered government so perhaps we should see this as an external "check and balance" to the internal workings of government. If "Congress shall make no law ..." regarding this freedom is to mean anything it must imply that the Congress is generally severely limited in how it might restrict the freedom of the press.

I draw a parallel with the "establishment clause" as I believe the founders intended. That is that the Congress is generally prohibited under the preponderance of circumstances from interfering with these freedoms even given that they may at times be considered to be "abused".

My concern echos Forbes' in that journalists often seem to champion their rights but fail to see their obligations as American citizens. I'm just not convinced of the extent to which we can force them to understand their obligation as citizens to exercise their rights responsibly. Unfortunately, since Watergate it seems that journalists have somehow come to the conclusion that "gotcha" journalism is the standard, forgetting, I believe, their primary obligation simply to inform the citizenry.

[The same old creeps, saying the same old things]

These comments are all well and good, but I want to see more Pavlovian thread-hijacking. We need a troll to turn this into an OT bash-Bush fest.

[BumperStickerist]

You have a right to freely express yourself, but not a right to do so by proxy.

There is no Constitutional 'right to be anonymous while speaking'. There may be a desire to remain anonymous, but that desire is not a Constitutional right.

This I know because Juan nonVolokh told me as much after our racquetball game. We play on Thursdays, at the local Y, near the University, usually on court 3 at 6:30am .. I'm the taller of the two players and have a better backhand... so at least I didn't reveal Juan's name, and possibly, got some people interested in trivial things like anonymous lawblog/law web-magazine contributor's identies something to go after.

If the press wants to *invent* a code of conduct for its members such that other people are more comfortable, that's fine.

But there's no basis for this practice of shielding sources in the Constitution.

[creepy dude]

Saturday update:

A journalist comes out and says Rove was Cooper's source.

The grand jury has subpoenaed a wide range of White House documents, including records of telephone calls from Air Force One and information relating to an internal working group dealing with Iraq.

No one has yet explained, if it's all so meaningless, why Bush hired a personal attorney and was questioned for over an hour by Fitzgerald.

The "Nothing to see here" line is increasingly inoperative.

[creepy dude]

And from MSNBC:

"But one of the two lawyers representing a witness sympathetic to the White House told NEWSWEEK that there was growing "concern" in the White House that the prosecutor is interested in Rove. Fitzgerald declined to comment."

[creepy dude]

And remember if the AG had simply bottled all this up-this would all still be covered.

But Ashcroft recused himself!

Turns out Ashcroft was an honest guy. No wonder they didn't want him around for the second term.

I'm toasting Ashcroft tonight.

[creepy dude]

And let's not forget the President in all this-here he is in October 2003.

"...this town is a -- is a town full of people who like to leak information. And I don't know if we're going to find out the senior administration official. Now, this is a large administration, and there's a lot of senior officials. I don't have any idea. I'd like to. I want to know the truth. That's why I've instructed this staff of mine to cooperate fully with the investigators -- full disclosure, everything we know the investigators will find out. I have no idea whether we'll find out who the leaker is -- partially because, in all due respect to your profession, you do a very good job of protecting the leakers. But we'll find out."

Of course when he was spouting that nonsense, he wasn't counting on Ashcroft recusing himself and appointing an equally honest prosecutor.

[creepy dude]

And of course, if you'll remember, at the time, critics of Ashcroft suggested he should recuse himself , citing his relationship to Karl Rove, whose direct-mail and fund-raising firm collected hundreds of thousands of dollars to consult on Ashcroft's Missouri gubernatorial and U.S. Senate campaigns before Rove became Bush's chief political adviser.

[creepy dude]

And of course, one of the people most gladdened by the recusal was Chuck Schumer, who issued a statement saying: "Tonight, the American people can, as a result, feel more assured that there will be a full and thorough investigation, no matter where it leads."

Does anyone have any quotes from Bush White House Officials praising Ashcroft's recusal?

So it's all coming together nicely.

[narciso]

Is it time to remind everyone, that the
Federal Communications
Act of 1934, tore a
huge hole in the first
amendment

[narciso]

Is it time to remind everyone, that the
Federal Communications
Act of 1934, tore a
huge hole in the first
amendment

[kim]

The official allowing of secrets which need not be told degrades the polity.
===============================

[kim]

But enhances governance.
========================

[Marla Randolph Stevens]

I encourage you to read the actual shield bill. From Mr. Kleiman's remarks, it would seem that he hasn't.