July 08, 2005

Judith Miller Goes to Jail

Good column today from Jonah Goldberg on the jailing of Judith Miller:

"My heart goes out to Judy. I told her as she left the court to stay strong," a visibly shaken Matthew Cooper said yesterday referring to Judith Miller, the New York Times reporter sentenced to jail for refusing to testify about a White House source. "I think this clearly points out the need for some kind of a national shield law. There is no federal shield law, and that is why we find ourselves here today." And away we go. In the weeks to come, we can be sure there will be an enormous groundswell — or at least a troposphere swell — among elite journalists demanding a federal shield law, the stated purpose of which would be to protect journalists from ever exposing their confidential sources. But the ultimate effect would be to give them blanket immunity to commit a wide array of crimes. Don't get me wrong, I think what is happening to Judith Miller is wrong. In fact, unless Patrick Fitzgerald, the special prosecutor in charge of the Plame case, knows something none of us even suspects, he's making a terrible mistake going after journalists this way. The law he's allegedly enforcing, the Intelligence Identities Protection Act of 1982, was almost surely not broken when Valerie Plame's identity was revealed by Bob Novak two years ago. According to numerous legal experts — including Bruce Sanford and Victoria Toensing, who helped write the law — the facts don't fit the requirements of the law. Valerie Plame wasn't a covert field operative, the leaker(s) in all likelihood didn't have the required provable intent to put her life in jeopardy (and even if they did, how do you prove that?), and her life wasn't really put in jeopardy. So, again, unless there's a lot more to the
story that we don't know, Fitzgerald's making a big mistake.

Those that are criticizing the jailing of Judith Miller have been focusing on the issue of "why is she going to jail when Bob Novak is not?" Well, quite frankly, it boils down to this: (a) Judith Miller decided to defy a court order and (b) Bob Novak did not. O.K., I know the response will be: but Bob Novak is the one that committed a more serious crime by leaking a CIA agent's name. Did Bob Novak violate the Intelligence Identities Protection Act of 1982? It does not appear, however, that he did - after all, Valerie Plame was not a covert operative at the time.
The whole investigation into the affair should never have gotten this far... I sincerely doubt that they can make their case under the 1982 act against Novak or the alleged leaker, and they should have known that as soon as they found out that Valerie Plame was not covert. Yet, as Jonah indicates, they continued the investigation. By continuing the investigation, the prosecutors thought that Judith Miller could provide them with more information. Of course, that is where the stand off began and the reason why Judith Miller is now in jail. The court ordered that she turn over her notes and she refused in order to protect a confidential source.
Should there be a "journalist shield law" whereby journalists are not required to reveal their confidential sources? Hell no. Enacting such a law would be an unmitigated disaster. There would be nothing to prevent journalists from making up supposedly "confidential sources" to either short cut their work or to further their own agenda. Anyone remember Jayson Blair at the New York Times. It would be easy. You don't like Karl Rove? Say you found a confidential source that overheard Karl Rove admit he was behind the 9-11 attacks or that he likes to sleep with young boys. Doesn't matter that such a conversation never took place. After all, you could never be forced to reveal the confidential source that overheard the alleged conversation. Too much potential for abuse....
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