Bad Cases Make Bad Arguments

Clark Hoyt, Public Editor of the NY Times, comes out in favor of the "Save Scooter Libby Act of 2008", known more commonly as the press shield law, with as odd an argument as one might see.

Times reporters have had more than their share of recent court struggles to protect confidential sources, the latest being James Risen, who is fighting a grand jury subpoena for testimony involving a 2006 book he wrote on the C.I.A. But the journalist in the most immediate jeopardy is Toni Locy.

Locy, a former reporter for USA Today, is facing the choice of personal financial ruin or surrendering the names of as many as a dozen sources who might — or might not — have given her information about Steven J. Hatfill, a “person of interest” in the investigation of the 2001 anthrax attacks that killed five people, injured 17 and terrorized the nation. It is not clear that a federal shield law can arrive in time — or in a form — to help her.

Hatfill, a former government researcher who specialized in germ warfare, is suing the Justice Department and the F.B.I. because he says leaks to the news media about the anthrax investigation violated the federal Privacy Act and destroyed his reputation. (He also filed a defamation suit against The New York Times for columns by Nicholas D. Kristof that first identified him only as “Mr. Z.” The trial judge dismissed that suit, and Hatfill is appealing the decision.)

United States District Judge Reggie B. Walton has ordered Locy to identify her sources or pay heavy fines, escalating to $5,000 a day. He has decreed that no one can help her with them — not USA Today, her family or her students at West Virginia University, who had offered to organize a bake sale. Locy teaches media law and public affairs reporting and will be moving this fall to Washington and Lee University.

Let me summarize - Mr. Hatfill is tagged, privately and publicly, as a "person of interest" in the anthrax case.  Ms. Locy reported that "investigators — but not all of them — believed Hatfill was behind the anthrax attacks. Two unidentified sources said the evidence against him was largely circumstantial".

And now the years have gone by, Mr. Hatfill clings bitterly to the notion that the proper venue for the government to level a charge against someone is with an indictment in court rather than with anonymous leaks to the press, and Ms. Locy and her press supporters are rallying behind the right of the government to smear anyone at all without fear of consequence.  Is this a joke?  We're fighting for the right of the Federal government to smear anonymously anyone it wants and for the press to walk away?

A critic of the bill notes that, had this law been in effect, Scooter Libby would never have been tried (OK, works for me...).  And I can remember any number of defenders of Bill Clinton deploring the leaks out of Ken Starr's office during those glory years; fun though they may have been at the time, it is simply not right for a prosecutor to be able to selectively leak whatever he chooses against whomever he chooses without fear of investigation or consequence (although the President is hardly without resources.)

If Mr Hoyt had wanted to have a hope of persuading me he would have emphasized the tale of James Risen leaking the story of the possibly unconstitutional NSA surveillance.  But even there it is not clear that the proposed shield law would help him, or should, since the bill includes national security exceptions.

John McCain has expressed his support ("pandering to his base", said one Atlantic blogger), as have Hillary Clinton and Barack Obama (but no word from Scooter).

I have a problem with this bill even with the national security exceptions - for example, the San Fran Chronicle wishes its reporters could have been protected in their leak of the Bonds grand jury testimony.  Sorry, wrong example.  Yes, of course it was news, but even Barry Bonds is entitled to due process; since he was eventually indicted, the damage to his reputation is somewhat moot (OK, what about Sheffield and Giambi?), but the grand jury process does include a promise of secrecy that unscrupulous prosecutors could easily abuse, aided by this law.

I smell a huge bait and switch - I think it is very rare for the Federal government to stifle dissent by subpoenaing reporters, but that it is becoming increasingly common for private entities (Mr. Hatfill, or perhaps an business vexed by some reporting) to get a subpoena in a civil suit.  From this survey study we infer estimates of

- 7,244 state and federal subpoenas in 2006 in total.

Respondents reported 3,062 Federal and State subpoenas, including 335 [Federal subpoenas] in 2006. Out of those, 34 requested confidential material, 21 asking for the names of confidential sources and 13 seeking other information obtained under a promise of confidentiality.

But on the actual behavior of the Department of Justice we get this (emphasis added):

The Justice Department has said its record of subpoenaing journalists is "one of restraint," and that bringing journalists into court is only done as a last resort. On September 20, 2006, then-Deputy Attorney General Paul J. McNulty said the department had requested information about confidential sources from journalists in fewer than 20 cases in the preceding 15 years and that this record shows that the proposed shield law is "a solution in search of a problem."

Well, not exactly - I have no doubt there is a problem the media hopes to solve.  These Federal subpoenas are not from cases where the Federal government is the plaintiff.  The media is apparently accustomed to having a very powerful Federal government dish dirt on third parties, such as a Mr. Hatfill; when a Mr. Hatfill strives for redress in Federal court, the press would rather not be bothered.  This law would protect the media from a lot of legal bills; it would not protect James Risen, but would have shielded Scooter Libby.

Sounds like exactly the sort of FUBAR a Dem Congress would deliver.  Hope and change!

PILING ON:  Who is a journalist?  Uhh, anyone who can deliver lots of publicity, favorable or otherwise, to Congressman?

TRY AGAIN:  Suppose the Feds were leaking about the dangerous behavior of some hypothetical coal mining company - would that be worth protecting?  Well, why - the Feds have enormous investigatory and compliance power.  Just for starters, they could indict the owners or cite a million OSHA violations - do they really need the power of secret, undetectable leaks as well?

Now, if a disgruntled employee, perhaps a disgruntled grunt, wants to be a whistleblower, I can become sympathetic.  But both the NY Times and the San Fran Chronicle want me to protect what looks like abusive investigatory and prosecutorial tactics.

 

Comments

[clarice]

IIRC leaking smears to the press about subjects of grand juries and political enemies was Spitzer's forte, too--until..well..you know.

[glasnost]

Well, what have we here. A serious post on a serious topic, lacking five coats of irony and nastiness. I'm impressed.

But you're wrong. Or, not thinking clearly. Or, have your priorities messed up.

It is simply not right for a prosecutor to be able to selectively leak whatever he chooses against whomever he chooses without fear of investigation or consequence

The action here is leaking information. To leak information to a newspaper is, in the long-run, fundamentally harmless. If you leak something that's a lie, the truth will come out, and you will be punished, one way or another, even as a prosecutor. If you leak true information, then the public had a right to know - pretty much automatically.

If someone leaks information that makes you look bad, and it's true, perhaps you deserved to look bad. If you have exculpatory context, you can get that published and let the public be the judge. It's a free-market fair fight.

I'm not saying there's no downside. But the alternative is for the government to be able to systematically prosecute insiders who let the public know information the government wants to keep quiet. This isn't just the NSA wiretap story. It's everything from Guantanamo Bay, bad events in Iraq, retired generals speaking up to Rumsfeld, US attorneys on Gonzales, cover-ups, collusion and bribery in all corners.

Heck, congressmen could use prosecutors to prosecute people who leak information about earmarks. Even Glenn Reynolds should see the downside of that.

The ability of the government to throw journalists in jail is much worse than the ability to leak info selectively. It's only a trickle right now, but without a shield law, one day it could be a flood. Imagine a radical lefty using this power in office if you like. Or imagine being thrown in jail yourself for refusing to reveal one of *your* sources.

Fundamentally bad news. You should get behind this law.

[windansea]

psssssst...Glasnost is a wifebeater

[Topsecretk9]

. If you leak something that's a lie, the truth will come out, and you will be punished, one way or another, even as a prosecutor.

That's not true. For instance, in the James Risen case it's been insinuated that the chapter of interest released true damaging details of operations, but that the tale he wrapped it in was fiction. In order to counter the false information the revelation of classified operational details would have to be released - obviously it can't be done.

So, reporters just go merrily along printing crap sources whisper in their ear and there is no way to counter the dishonest information. Reporters know this game and love it.

[narciso]

Isn't this really the "Save Judith Miller,the Time reporter, Walter Pincus,
Massimo Calabresi" et al act. More to this particular point isn't this the "save Laura Rozen, Nick Kristof," Bill, for they were the ones who pressed the Suspect X, theory of a South Africa/Rhodesian connected ultra rightist as the main suspect. Hatfill, did fit part of the bill, but likely fails other parts.

[Topsecretk9]

Incidentally, this is the NYT's in October, 2003 on the Valerie Plame non-leak

As members of a profession that relies heavily on the willingness of government officials to defy their bosses and give the public vital information, we oppose "leak investigations" in principle. But that does not mean there can never be a circumstance in which leaks are wrong — the disclosure of troop movements in wartime is a clear example.

then in June of 2006

The Swift story bears no resemblance to security breaches, like disclosure of troop locations, that would clearly compromise the immediate safety of specific individuals.

so it's clear that the NYT's isn't even sure what they are for or against.

[MayBee]

My concern is the ability of journalists to just make stuff up. Think of the 1x2x6 (or whatever), a sentence that seems to have had no basis in reality but nevertheless changed the tide in calling for investigation.
If reporters are known to be protected from naming their sources, it would be easy to just start creating sources to say whatever it is the reporter wants said.
I say, keep the fear of God (or the courts) in them. Make them know they may have to be accountable.

[RichatUF]

glasnost-

To leak information to a newspaper is, in the long-run, fundamentally harmless.

Tell that to the Duke Lacrosse Team.

[bio mom]

No shield law until some standards and accountability are imposed by the profession on its members. Right now the press is the only really powerful institution that has absolutely no checks and balances. They do not need even more unchecked power.

[Barry]

I'm with you MayBee, we know they make stuff up, then attribute it to those government sources, giving it some authority. A "journalist" (yes those are contempt quotes) should be held to the same standards as everyone else.

[RichatUF]

Also isn't in re: Hatfill a civil suit for Privacy Act violations. I'm not sure what sort of shield the press could hope for to defend against a civil suit. IIRC when the Clinton machine got done with Linda Tripp the Pentagon had to fork over more than 500k regarding similiar violations (which were leaked to the press) of the Privacy Act.

Here's a write up from FR

[narciso]

Dana Priest, who in a previous incarnation, polished Gen Zinni's ahem "reputation" as proconsul at CENTCOM; effectively dismantled
the whole rendition effort from Europe to Bagram and Gitmo. In doing so, she likely made it it possible for Mr Abu Laith Al Liby
to escape Bagram; and now he's on the loose.
Risen, opened the door to completely unraveling the terrorist surveilance and
financial transactions tracking system (SWIFT) That is comparable to revealing the
ULTRA code, and alerting that we can track his troop movements.

[Elliott]

narciso,

How might the Priest story have led to al Libi's escape?

[Topsecretk9]

regarding all the comments on this thread re; sources ets. - take a moment to recall this

And then ponder the notion that Pincus had previously written about Levin's "report" and had a copy of it.

This was all public info that Pincus didn't even remember and then he just parroted dishonest representations Levin spoon fed him,

[RichatUF]

Suppose that it would helpful if I read the entire NYT editorial...If something close to the House version of the shield law were to become reality and be applied to this case, Locy would be off the hook, because the reporter’s privilege in most civil cases like Hatfill’s would be absolute.

A helpful tool for democrats and the permanent bureaucracy to destory their political opposition.

[Rick Ballard]

Rich,

I've been pondering your reference to Nietzsche, Heidegger and Schmitt in relationship to BHO for a bit. I think that assigning the requisite "will to power" to him is too great a reach. Red Witch is a different story.

My current hypothesis is that she intends to leave BHO with a wholly Pyrrhic victory wrt the nomination while working to guaranteee his defeat in the general. By doing so, she's going to leave herself available for a face off with Dean (if anyone remembers him) in 2012.

She knows that the prog bloc and the black bloc do not have the muscle to carry BHO to anything but ignominous defeat. The geographic segregation and isolation of the prog and black fiefs reduce their utility in the general to giving a potential edge in MO, PA and WI, and that wouldn't be enough even if BHO were actually viable as a candidate.

I believe she fits the Schmitt model far better than does BHO. I can't think of anything she would not do in order to gain power - nothing is beyond her. BHO fits the Trotsky model - he's going to think the fellow with the ice axe is bringing him a present.

[JM Hanes]

Back before I discovered how much devotion sustaining a blog actually requires, I tackled shield laws, whistle blowing and anonymous sources in the context of the Libby trial (and, naturally, in response to a TM item here!) over at Quasiblog. Who Ya Gonna Call?:

In practice, "the public's right to know" is often more convenient can opener than principle. The same can be said for the protection of anonymous sources. The putative principle is that anonymity makes whistle-blowing possible; but is that really true?

As the Plame case demonstrates, until sources are identified, it's virtually impossible to prosecute wrongdoers for any crime supposedly exposed. Even witnesses whose lives are endangered are afforded new identities after they testify. Juries must be able to assess a whistle-blower's credibility. The defendant has a constitutional right to confront his accuser. The public is legally entitled to observe the proceedings and draw its own conclusions. When crimes are tried in our 24/7 press, these three foundational principles are violated every time a reporter cites an anonymous source.

Reporters themselves are often the primary beneficiaries of the privileges we accord them. As often as not, the use of anonymous sources serves no public purpose. To the contrary, it serves the reporter's proprietary interest in the story he is promoting, and it obstructs both investigation and analysis by others -- Special Prosecutors among them. It is both ironic and revealing that some of the loudest complaints about the privileges enjoyed by Judy Miller, Bob Woodward and their protected sources appear to have issued from staff at the New York Times and the Washington Post.

There's more, but my conclusion remains unchanged:

If nothing else, the Plame game suggests that the reporter’s privilege is a truly double-edged sword, one that is not uniformly wielded in the public interest. The drive to cement the protection of anonymous accusers in law deserves to be approached with considerably more caution than it has been to date.

I'd like to be the first to question the timing here! Alas, John McCain, first and foremost, is unlikely to sacrifice his singular advantage with the press by opposing a shield law immediately prior to elections, but I doubt we can expect to see much spine from any politician on that score. With both government and press arrayed against our right to know, I content myself with trying to conceive of potential constitutional challenges. Perhaps our lawyers could opine on whether or not the most fruitful fodder for examination might be the basis for defining journalists as a class.

[Rick Ballard]

JMH,

I can't find that quadrant based political orientation questionnaire that you were referencing at one time. Do you recall where to find it?

[narciso]

After the rendition investigation into Khaled el Masri's trip from Munich; to Bagram's Salt Pit, which has now earned in some circles the reputation of regional gulag. The authorities more than likely softened up the administrative procedures of the prison. Is it a surprise that the aforementioned Effendi Al Liby escaped lot longer after that expose.

Now context is all important, and surprising
missing from most news accounts??Munich happens to be the site of one of the 1st major Moslem Brotherhood Mosques founded by Hassan Al Banna's son Said Ramadan, who in turn was the father of esoteric Islamist philosopher Tariq; who was the model for the AQ recruiter; Tariq Massoud in Silva's
"The Messenger". The interrogator at the prison according to some accounts was the
same T.W. who had been surveiling the Hamburg cell back in 1999-2000.

[PeterUK]

Mr Ballard,
"BHO fits the Trotsky model - he's going to think the fellow with the ice axe is bringing him a present."
Are you saying Hillary is Stalin in a skirt? Think of poor Bill.

[JM Hanes]

Rick: I used The Political Compass. There are a couple of others along similar, but interestingly different lines, that I cached somewhere too effectively to find at the moment, alas, and of course there's always the World's Smallest Political Quiz, if speed is of the essence. The Compass is fun because that's the one where they plug historical figures into their results grid.

[Rick Ballard]

Mr Uk,

Red Witch as Stalin? Well, she lacks his grand compassion but aside from that... I was actually thinking more of the Austrian fellow. Same pod. As to Bubba, in italiano si dice "Devo togliarmi questo sasso dalle scarpe." Akin to the meddlesome priest resolution but self directed. It will be a tip off if she assigns staff to investigate event planning involving the National Cathedral. I think he's safe for now. A bit less so should she ever be elected.

JMH,

Thank you. I mentioned it last night and then couldn't find the darn thing. The compass is the one.

[airedale]

I might be willing to give them a partial shield law but in the case of libel and slander then their defenses would be the same as for a normal citizen even against public figures. That means if it's wrong then the press loses. Right now they have to know it's wrong and recklessly go ahead and publish it. That's a very high bar. If they give up their source then their defense goes back to what it is now. This change would apply to the reporter, editors publishers and the news outlet itself. And I think treble damages and mandatory punitive damages would be appropriate if the news outlet didn't follow proper journalistic standards (the ones they claim to follow not the ones they do)in a cases like Dan Rather or Hatfield for example. Old Danny boy would be broke because Bush could have sued him like both weren't public figures and all it would have to be shown is that his story was wrong which it was. So would the people at 60 Minutes. But the media would scream bloody murder if they were held accountable for being wrong.

[RichatUF]

Rick-

In re BHO and Schmitt. Thinking it over I'd have to agree that RW fits the mold better.

BHO's campaign bothers me though-can't quite put my finger on it and his SF comment got me thinking beyond "false consciousness" and more in terms of "state, movement, people".

I'm sort of surprised there is very little online looking at BHO's politics through post-68 French philosophy with the Spengler AT article comparing him to a cultural anthropologist and considering BHO was educated in the seam between the failure of the 68 uprisings and before the fascist origins of the French radical theorists were discovered. BHO's connections to the Said "Orentialism" school doesn't give one much hope either that his politics are only limited to a corrupt Chicago machine.

[M. Simon]

I'm with you MayBee, we know they make stuff up, then attribute it to those government sources, giving it some authority. A "journalist" (yes those are contempt quotes) should be held to the same standards as everyone else.

I don't want to be held in contempt.

[Neo]

There was some talk a few months ago about this bill having a "trap door" for journalists.

The deal was that journalists would be shielded except for information regarding "crimes" when they would be required to reveal that information .. something akin to the 'attorney-client' relationship when an attorney are required to reveal information regarding "crimes" involving the attorney and his client. This "shield law" would codify a portion of law that isn't completely settled, reporter as criminal.

As applied to the Risen case, Risen would be considered part of the 'crime" so he would have no shield, and no basis for appeal.

[kim]

Wasn't it a geologist's pick? Less likely to attract attention in La Republica.
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