Woe is me!

Poor, poor pitiful me!
Poor, poor pitiful me!
Oh, these boys won’t let me be
Lord have mercy on me!
Woe, woe is me!

(It is actually pretty ripe for parody.)

With Sources Like These....

So Judy Miller has been freed to testify by her source, I. Lewis Libby, Vice President Dick Cheney's chief of staff.

The publisher of The Times, Arthur Sulzberger Jr., said in a statement that the newspaper supported Ms. Miller's decision, just as it had backed her refusal to testify.

"Judy has been unwavering in her commitment to protect the confidentiality of her source," Mr. Sulzberger said. "We are very pleased that she has finally received a direct and uncoerced waiver, both by phone and in writing, releasing her from any claim of confidentiality and enabling her to testify."

So why didn't Scooter give Miller the green light a long time ago, to save her from jail in the first place? What's so special about the "new and improved" waiver which gives Miller certainty that it is uncoerced (this time)?

Mr. Libby wrote to Ms. Miller in mid-September saying he believed that her lawyers understood during discussions last year that his waiver was voluntary.

It took a star reporter for the New York Times a full year (and a couple of months in jail) to find out that one of her highly placed sources had released her to disclose his identity? The New York Times may claim that it provides all the news that's fit to print, but... tell me I'm wrong, that it's leaving out some key details.

Wishful Thinking?

Today's Times writes, in relation to Judith Miller,

As of today, Judith Miller has spent more time behind bars to protect privileged information than any other New York Times journalist.

Except Miller appealed her case all the way up to the Supreme Court, and has been given the unequivocal answer that the communication at issue is not privileged. The Times can argue that she is taking a stand in defiance of the law as a matter of principle, and it can continue to lobby Congress to create a privilege, but it should not bandy about claims of privilege where it surely by now understand that none exists.

Shielding the Press

The New York Times today editorializes in favor of a federal "shield law" to allow reporters to "guarantee that journalists are allowed the right to protect the names of confidential sources in most circumstances." And certainly, the public interest can be advanced by having certain information made public, where the source might not be forthcoming if not for the shield.

Here's my challenge, though, for the New York Times: Compose a "shield law" that you believe would serve the interests of reporters and the public, without encouraging criminality or jeopardizing national security. Then ask yourself two questions: First, would Judith Miller's source be protected under the law? And second, if not (or if a judge found that she was not shielded), would she testify? Because if, at the end of the day, we end up back where we started, what's the point of the exercise?

To the extent that the New York Times endorses language that permits forced disclosure "to prevent imminent and actual harm to the national security", is the naming of a covert CIA operative, and associated identification of her nominal "employer" as a CIA operation, not an actual harm to the national security? Or is the Times only concerned about the effect on national security after the leak is published, and not the harm to national security that results from the leak itself? Somebody leaks battle plans - but you can only force the identification of the leak before the battle is lost. And if the battle is won despite the leak, hey - no harm, no foul, right? That would be a curious rule.

In bringing up, "privileges already granted to doctors, psychiatrists, lawyers and spouses," it is important to note that the privilege requested by reporters is of a different nature. When somebody tries to pierce the attorney-client privilege, for example, they do so with knowledge of the identity of the holder of the privilege. That is, the client. The same is true with regard to medical privilege and spousal privilege - the identity of the patient or spouse is known. States as a rule hold that a client's identity is not covered by attorney-client privilege, just the confidential communication. And it should go without saying, for any of those privileges, that if the holder of the privilege instructs the lawyer, doctor, or spouse to broadcast the confidential communication to others, a later attempt to assert the privilege would fail.

That is to say, traditional privilege protects the information, even though the source is known. Reporters claim a privilege which protects the source, even when the information is known. The effect of such a privilege, and its public policy implications, are quite different than those implicated by other forms of privilege.

The Bush Administration hates leaks, except when it is orchestrating them, and is thus adamant that there should be no law protecting reporters, even as it is quietly rejoicing in Miller's decision not to reveal or, probably more accurately, confirm the identity of her sources. Would you fall on your sword for somebody who is simultaneously knifing you in the back?

Crocodile Tears Revisited

Today's Times attempts to rehabilitate Judith Miller, by rationalizing her conduct.

But the hard truth is that no reporter can choose the circumstances for upholding a principle. It doesn't matter whether we think a source is a good person or has good motivations. A reporter promises confidentiality, and the paper backs up the journalist because otherwise the public will not learn what it needs to know. It's up to the reporter and editor to determine whether information given under a promise of confidentiality is reliable. But reporters cannot apply ideology when protecting their sources, any more than civil liberties lawyers can defend the First Amendment rights of only the people they agree with.

But wait - the paper just got through telling us that Miller didn't write a story, so it seems fair to assume that the leak at issue did not implicate the needs of the public to "learn what it needs to know". At a certain point, when a reporter shields dubious sources with promises of anonymity, the reporting ends and what amounts to a conspiracy begins - a conspiracy that allows a lazy reporter to sit behind her desk, get sensational "scoops" from anonymous high level sources, and print them without regard to their truth. That's not protecting the needs of the public - it is self-serving conduct, which primarily helps the reporter, secondarily helps her newspaper sell copy, but in fact causes harm to the public. When one of those dubious sources later telephones the reporter to leak the identity of a CIA operative, as part of a revenge plot against the operative's husband, the public interest is not advanced by protecting the source. Once again, the public interest is harmed.

The prosecutor produced what he claimed were waivers of confidentiality signed by White House officials, and his supporters have asked how Ms. Miller or any other journalists could remain silent if the presumed sources say they are free to talk. In fact, these documents were extracted by coercion, so they are meaningless.

That is true, actually. If everybody has to sign a waiver to keep his or her job, the source will be placed in the position of either signing a waiver or being identified by virtue of his or her refusal. To the extent that a reporter is willing to go to jail on principle under such circumstances, there's some substance to the principle. Whether or not this applies to Miller? Not even the NY Times seems to know.

Personally, I think Miller's "principles" are that she is protecting her ability to be a lazy reporter, an eager conduit for salacious and inflammatory rumors from people like Karl Rove, reprinting them without regard to truth. I don't believe that the "sources" she is protecting are those traditionally associated with reporting - that is, she didn't find them by doing anything that is traditionally associated with investigative reporting. They came to her and she cut a deal with them which was against the public interest. She kept her end of the deal (and gained considerable notoriety) by disseminating innuendo and falsehood on their behalf, with scant regard for the public interest. So I have little sympathy for her present, ostensibly "principled", stand.

In fairness, at least when it came to this particular story, she was more principled than Robert Novak.

What? You Want *Tears*?

Some news agencies and columnists seem shocked that the U.S. public is indifferent to the incarceration of Judith Miller, for her refusal to obey a lawful court order that she disclose her source(s) in relation to the "outing" of CIA agent Valerie Plame. David Broder suggests that the moral of the story is that reporters need to be more careful when selecting their sources - but that doesn't apply to Miller (at least in this context) as she didn't run a story on Plame. She obtained information from sources which revealed Plame's identity as a CIA operative. To the extent that some people are less sympathetic to Miller because of her history of cultivating dubious anonymous sources, and printing stories based upon their "disclosures" which ultimately proved to be false, I don't think that explains the public indifference to Miller's incarceration, or the possibility that it might be extended by virtue of criminal contempt charges.

The public has a natural skepticism of "anonymous sources", and with good cause. A lot of misinformation, and a lot of injustice, has resulted from the abuse of anonymity. When a reporter asserts that she will go to jail rather than disclose her source, the public can reasonably be expected to consider the actual downside of disclosure. Not the "chicken little" downside, where we are immediately propelled down a slippery slope to a point where nobody dares to provide information to reporters under cover of anonymity. But an actual downside - the here and now, "in this specific case" downside, which can be weighed against the benefit of disclosure.

In the case of the "outing" of Plame, the "downside" of disclosure is that the people who leaked Plame's identity will become known. In a best-case scenario, if you accept the word of the Bush Administration's spin doctors, Plame herself had limited value as an operative. But it isn't just about Plame - it is everybody who had contact with Plame during her covert work, and everybody associated with the company she ostensibly worked for, which was also unmasked as a CIA operation. And while I doubt that the typical citizen has thought through all of the ramifications of the disclosure, I don't think that there is much sympathy at all for the people Miller is protecting. This is not a situation where a leak helped unmask government deception, government corruption, or crimes by government officials. This is a situation where the corrupt, deceptive, and/or criminal conduct is the leak itself.

Am I surprised that Miller, her appeals exhausted, her justification for her refusal to testify (she has a release, but it might have been coerced) tenuous, and the principle for which she ostensibly stands (advancing the ability of the media to uncover sensitive stories by protecting anonymous sources) turned on its head by the actions of her sources, gets little public sympathy? Particularly at this point, where Miller's testimony appears to be desired not to gain new names, but to connect a few key dots to complete the investigation of a crime? Not at all.

Broder also notes,

Novak, who has a well-earned reputation for carrying water for his favorite conservatives, has not been prosecuted for publishing Plame's name and has refused to discuss his role in the case or his dealings, if any, with the grand jury investigating the leak.

At this point, is there actually any lingering doubt about Novak's cooperation with the Grand Jury?

Excuse Me?

They say that misery loves company, but in reading Jack Shafer's comment,

Even a stopped clock tells the right time twice a day.

I find myself in the position of having to protest that I am not yet so miserable as to want that company.

Seriously, though, I picked the name of this weblog as a bit of self-parody - no matter how I come across at times, I don't take myself that seriously - but at times like this I feel compelled to point out that a stopped clock is not right twice a day. It is wrong all of the time. The fact that the incorrect information it conveys is, on a recurring basis, consistent with the facts does not change the fact that the information frozen on its face is entirely disconnected from reality. And such is Judith Miller.