For the past several months, most (though not all) members of the media have been falling all over each other applauding New York Times reporter Judith Miller’s courageous stand in defense of the “freedom of the press.” Now that she is out of jail, and has both testified and written about this incident, we can see more clearly what this was all about.
The story is familiar. In early July 2003, former Ambassador Joseph Wilson wrote an essay in the New York Times asserting that the Bush administration had “misspoken” about Saddam Hussein’s alleged scheme to obtain uranium from Niger. On July 14, the syndicated columnist Robert Novak revealed that senior Bush administration officials had informed him that Wilson’s wife, Valerie Plame, was a CIA operative. The pretense of the leak was that this information was relevant to assessing Wilson’s credibility, but the widespread suspicion was that the leak was a cynical effort to punish Wilson for his “disloyalty” to the administration. Because it is a federal crime for a government official, in some circumstances, to disclose the identity of a secret CIA operative, Attorney General John Ashcroft appointed a special prosecutor, Patrick Fitzgerald, to investigate the matter.
On the theory that the senior administration officials had been shopping the Plame information around to a number of reporters, Fitzgerald subpoenaed several to testify before the grand jury. Judith Miller, like some of the others, claimed that she did not have to testify because the “reporter’s privilege” gave her a right to shield her confidential sources. Complicating this claim were the rather awkward facts that there is no federal statutory reporter’s privilege and that the Supreme Court in 1972 had adopted an extremely narrow First Amendment privilege. To make matters worse, the White House, under considerable pressure from the press to facilitate the investigation, directed its employees to sign formal waivers of any privilege they might actually have, thus freeing reporters from any promises of confidentiality they may have made to senior administration officials relating to the Plame investigation. At this point, several reporters who had been subpoenaed agreed to testify.
Two who didn’t were Judith Miller and Matt Cooper, a Time magazine reporter. Asserting an essentially nonexistent federal reporter’s privilege, they challenged the subpoenas all the way to the Supreme Court, as was certainly their right. After Miller and Cooper had lost at every level, Time directed Cooper to testify, and he did. Miller, however, remained obstinate. Although not a single judge had accepted her claim, she insisted that the law be damned, she had a privilege and she would assert it, come hell or high water. She was promptly held in contempt of court and shipped to the slammer, where she remained for 85 “heroic” days.
I have three problems with this fantasy. First, although there should be a federal reporter’s privilege, there isn’t one. Judith Miller has no legal or moral authority to decide for herself what rights she has, as a reporter or otherwise. She argued her cause in the courts, and she lost. At that point, like Matthew Cooper, she should have complied with the law, whether she liked it or not. She did not stand on “principle,” but flaunted our nation’s elemental commitment to the rule of law. In a democratic system, no man is above the law, and neither is any woman.
Second, she did not in any event stand on any principle worth preserving. The reporter’s privilege, which is recognized in one form or another by most states, is intended to protect the source, not the reporter. The idea is to enable individuals who might otherwise be afraid to disclose information of public importance to do so. But in this instance, the disclosure of Valerie Plame’s identity as a CIA operative could well have been a federal crime. This was not a case of a whistleblower revealing that a congressman has accepted a bribe or that a corporation is marketing an unsafe product. There is no sound reason in law or logic to protect a source whose disclosure is itself unlawful and does not reveal information of substantial public importance.
Third, and most startlingly, we now know that the real reason for Judith Miller’s silence was not to protect the confidentiality of a source. Miller claims that she refused to testify because she was uncertain that her source – Scooter Libby – had voluntarily waived his privilege. In her own words, “I believed that nothing short of a personal letter and a telephone call would allow me to assess whether Mr. Libby truly wished to free me from the pledge of confidentiality.” That he had signed a formal written waiver was insufficient for Miller because such a waiver was not necessarily voluntarily. Fair enough, although Miller has a rather peculiar view of coercion. In the criminal justice system, for example, we routinely allow prosecutors to induce defendants “voluntarily” to waive their right to a jury trial by offering them very seductive plea bargains.
In any event, if Miller was truly concerned about whether Libby’s written waiver was voluntary, all she had to do was ask. But she didn’t because that, too, might be unduly “coercive.” That, frankly, is absurd. Certainly, Libby knew of Miller’s plight. If he thought she was in jail because she was protecting him, he was already under great pressure (assuming he has a conscience) to waive his privilege. As he has since quite credibly explained, he thought he had already waived his privilege, so there was nothing more for him to do. Moreover, the notion that a phone call to Libby to clarify the situation would be unduly “coercive” seems wildly naïve. Scooter Libby has dealt with a whole lot more pressure than that. Only an off-the-charts egotist could imagine that Scooter Libby would involuntarily waive his privilege just because she asked him whether he’d already done so.
The principle on which Judith Miller spent 85 days in jail, gobbling up untold pages of newsprint and hours of broadcasting, inflicting enormous costs on the legal system, and obstructing the investigation of a possibly serious federal crime and breach of governmental responsibility, had nothing to do with the reporter’s privilege. It was, rather, all about Judith Miller’s weird fear of putting “undue pressure” on Mr. Libby, who happily waived the privilege once she finally relented and asked him. And then she, of course, quickly accepted his waiver and spilled whatever beans there were to spill. This is heroic?