A Perfect Paradox
Journalism's painful reassessment of first principles since Judith Miller disappeared behind bars would be a lot more focused and wrathful if journalists saw special prosecutor Patrick Fitzgerald as an enemy of the press and a White House toady. They don't. So Fitzgerald gets this much benefit of the doubt: he's putting together a case that's worth the effort, though it's a shame he couldn't leave Miller out of it.
It's almost impossible to think the Miller case through without stumbling on its paradoxes. Miller and her champions must believe that, long-term, it serves the public interest for reporters who promise sources confidentiality to keep their word. They might be right. But in the short term Miller's silence obstructs an investigation of the White House and therefore doesn't serve the public interest. In the long term the public will want to know what measures the Bush administration took against its critics as it led the nation into war. But in the short term that truth will merely increase the cognitive dissonance already tormenting a public that regrets a war it doesn't believe can be abandoned. The public presumably admires a press that reports the truth and exposes crimes, but it also admires one that protects its sources and keeps its promises.
Last Sunday two high-profile essayists at papers on opposite sides of the country took positions on Miller's case that at first seem poles apart. "Should a journalist protect a sleazy, possibly even criminal source? Yes, sometimes, if the public is to get news of wrongdoing," asserted Frank Rich of the New York Times, offering Bob Woodward and Mark Felt as his example. Michael Kinsley of the Los Angeles Times mentioned Deep Throat too, but as a contrast. "The [White House] coverup is crumbling," he wrote. "Wrongdoers may be exposed and punished. All no thanks to the New York Times. If the world worked as the New York Times thinks it should, the coverup would be rock-solid."
Rich was the more rousing of the two writers. "No reporter went to jail during Watergate," he declared. "No news organization buckled like Time. No one instigated a war on phony premises. This is worse than Watergate."
What is? The "scandal," said Rich, which "began with the sending of American men and women to war in Iraq." It's an immense scandal in Rich's eyes, and the jailing of Miller is a major piece of it. Rich gives the history. Joseph Wilson, a former American diplomat, wrote an op-ed piece in the New York Times in July 2003 saying he'd gone to Niger for the CIA in 2002 to find out whether Saddam Hussein had tried to buy uranium there. Wilson said that despite what President Bush claimed in his 2003 State of the Union speech, he was sure Saddam hadn't. A few days later syndicated columnist Robert Novak wrote that he'd learned from "two senior administration officials" that Wilson's appointment to the Niger mission had been "suggested" by his wife, Valerie Plame, a CIA "operative." This revelation by government employees seemed to violate federal law, and eventually it triggered Fitzgerald's investigation to find out who'd talked to Novak, Miller (who didn't write a word), Time's Matthew Cooper, and other journalists. Rich saw the revelation as an attempt to "smear" Wilson, and he compared it to the Watergate moment when "Charles Colson's hit men broke into the office of Daniel Ellsberg's psychiatrist, seeking information to smear Mr. Ellsberg after he leaked the Pentagon Papers."
Rich wrote enthusiastically about Fitzgerald's quest to get to the bottom of all this--"Has Mr. Fitzgerald moved on to perjury and obstruction of justice?" he wondered. But he didn't even try to square his cheerleading with his horror at Miller's contempt citation and his disgust with Time for caving in and turning over Cooper's notes.
Kinsley didn't see how they could be squared. He accepted that "outing Wilson's wife appeared to be the Bush administration's revenge," and that the White House had--in the language of a recent New York Times editorial--attempted a "coverup." But that cover-up made Miller's silence all the more ironic. He marveled, "So the noble principle for which New York Times reporter Judith Miller--egged on by her employer--now sits in jail is the right of journalists to participate in efforts to stifle dissent, censor free speech, abuse power, and then cover it all up. No?"
Kinsley was catching the New York Times in its contradictions. Citing past Times editorials, Kinsley argued that if the White House's "egregious abuse of power"--as the Times has put it--is to be punished, somebody needs to talk. The leakers are protected by the Fifth Amendment; if the reporters they leaked to are equally protected by the First, then no case against the leakers can be made.
But Kinsley's argument, like Rich's, was strewn with potholes. While Rich excoriated Time for surrendering Cooper's notes after the Supreme Court refused to step in, Kinsley applauded. Even Nixon turned over the Watergate tapes when the Supreme Court told him to, said Kinsley, asking, "Do journalists go beyond even Nixon and claim a right to disobey the judicial system's final determination? Answer: Yes, they do. Or at least the New York Times does." He scoffed at the Times editorial page's assertion that Miller was simply practicing "civil disobedience."
But the comparison to Nixon is frivolous. If Nixon had claimed a right to disobey the judiciary he would immediately have been impeached. Miller decided to take the consequences, and her defenders champion her on moral, not legal grounds. A lot of journalists who see all this differently have some sympathy for her, even journalists who can't forgive her for writing poppycock WMD stories based on anonymous administration sources that helped Bush persuade Americans that he was right to invade Iraq. Rich himself reminded his readers that Miller "was one of two reporters responsible for a notoriously credulous front-page Times story about aluminum tubes."
Journalists by the dozens are writing about the Plame-Miller saga, and as Rich and Kinsley show, they're a long way from consensus. Yet they're close on some important points. One is that Miller never should have promised to protect whoever her source was. The press has been second-guessing its heavy reliance on anonymous sources for some time now, and Miller is the ultimate example of how far out of hand things have gotten: going to jail for someone she should be helping send to jail. Another is that the Bush administration needs to be turned inside out. That's supposed to be journalism's job, but Fitzgerald's been doing journalism's work for it, charging it one reporter's freedom for the favor.
If Fitzgerald were the best friend journalism ever had, he might have decided to do exactly what he's done. He's angered it, shamed it, and awakened it. Plenty of newspaper readers must wonder why other reporters--at the Times or anyplace else--didn't do the work of reporters and find out who was feeding the media information about Valerie Plame. If they had, they could have saved Fitzgerald time and Miller anguish. Surely Miller couldn't promise any silence but her own.
Or Is It a Double Standard?
Four years ago "John Doe" sued the Nebraska town of Plattsmouth over a local park's monument to the Ten Commandments. Doe's ACLU lawyer had asked the court for anonymity to protect his client from reprisals, and no one had any objections.
Except, it seems, the Omaha World-Herald. The World-Herald has never cared much for Doe's still-pending suit. Noting in a June 28 editorial that the monument had been a gift of the Fraternal Order of Eagles "40 long years ago," the newspaper commented, "If that acceptance was so egregious, where was the outrage in Plattsmouth before 'John Doe' came along and got the ACLU to demand that it be taken down?"
On July 3 the World-Herald carried a long front-page story revealing John Doe's identity. Naming Doe was the main point of the article: there was a picture of the plaintiff and another picture of his car's license plate, atheos, which the paper explained is a "Greek word meaning godless." Doe turned out to be a retired marine who's long been an outspoken foe of anything that to him smacks of state-sponsored religion.
A few pages away a World-Herald editorial mourned the lack of a federal shield law protecting reporters who refuse to name sources. "If such a law were in place," the paper reasoned, "Judith Miller, a New York Times reporter, would not be facing prison over who said something that someone didn't like."
A Nebraska blogger blew up at the paper's inconsistency. "How hypocritical is that to reveal the identity (and so much more) of a man afraid for his life," marveled Kyle Michaelis, "on the same day they demand reporters be exempted from ever being forced to reveal such things in a criminal investigation. Talk about a power trip--the World-Herald wants to be judge, jury, and executioner . . . above the law in every way."
Well, sure it does. That's the yin and yang of journalism. It's the nature of journalists to reveal, and when disclosure is debated in newsrooms the default position is always to put it out there and see what happens. But it's also the nature of journalists to keep secrets. Knowledge is power, and power is delicious. Besides, keeping secrets protects the flow of revelations.
Thomas Knight, the former Du Page County prosecutor who two months ago lost a defamation suit against the Tribune, didn't fold up his tent. He's asked for a new trial, primarily on the grounds that trial judge Robert Gordon wrongly let the defense "introduce into evidence parts of various media stories . . . which portrayed the plaintiff in an extremely negative light." In other words, Knight claims the Tribune defamed him, then prejudiced the jury with an inadmissible argument that Knight's reputation had already sank so low (thanks to national coverage of the Rolando Cruz prosecution) that nothing could make it go lower.
Last December I wrote mournfully about the vanishing of light verse. So credit where it's due: the July/August Poetry has just arrived, and it's billed as the "humor issue." The very first poem rhymes "quote 'em" and "scrotum," an encouraging sign that the editors understood their mission.
Art accompanying story in printed newspaper (not available in this archive): photo/Alex Wong--Getty Images.