What’s with these special prosecutors anyway? Kenneth Starr is hired to investigate an obscure land deal and ends up impeaching the President for not coming clean about his sex life. And now Patrick Fitzgerald, the US Attorney from Chicago appointed to find out who violated the Intelligence Identities Protection Act by leaking to conservative columnist Robert Novak the identity of a covert CIA employee, ends up sending to prison a New York Times reporter who never wrote about the case.
Actually, for a while it looked as if Fitzgerald was going to use the government’s contempt power to force not one, but two journalists “not charged with any wrongdoing,” to quote William Safire, of all people, to betray their confidential sources. But at the last minute Time‘s Matt Cooper, who, like Judith Miller of the Times, seemed ready to go to jail rather than betray a source, got a message from his source, Karl Rove, releasing him from his promise of confidentiality and agreed to appear before the grand jury. Cooper, incidentally, seems to have become a target largely because of an article he (and two other Time reporters) wrote for Time‘s online edition three days after Novak’s scoop, saying that Time had received a leak similar to Novak’s. Subsequently Time Inc. editor in chief Norman Pearlstine, over Cooper’s objections, agreed to turn over Cooper’s notes, which included an e-mail showing that Rove had mentioned Plame, though not by name, and the prosecutor insisted Cooper testify in person.
Since much of the case is still shrouded in secrecy, determining the motives of the prosecutor is a mug’s game. But understanding the forces in play and the issues at stake would seem to be critical to anyone who cares about the ability of the press to gather and publish the information a democracy requires.
It all started on July 6, 2003, when Ambassador Joseph Wilson, based on a trip he took to Niger at the CIA’s behest, wrote an op-ed piece in the Times claiming that George W. Bush had relied on discredited information when he said in his 2003 State of the Union address that Saddam had tried to buy yellow-cake uranium in Niger.
Enter Robert Novak, who reported in his July 14 syndicated column that, according to “two senior administration officials,” Wilson’s wife, Valerie Plame, whom Novak described as “an Agency operative on weapons of mass destruction,” had “suggested” Wilson for the mission. Three days later David Corn wrote on the Nation website that if Novak’s reporting was accurate, the leakers may have violated the Intelligence Identities Protection Act, which makes it a crime to deliberately and knowingly divulge the identity of a covert intelligence agent, which Valerie Plame indeed was.
Several months later–after the CIA asked the Justice Department to investigate the leak–Attorney General John Ashcroft, who recused himself from playing any role in the case (what did he know and when did he know it?), appointed Fitzgerald special prosecutor to look into it. Subpoenas were duly issued to, among others, Walter Pincus of the Washington Post, who had written in October 2003 that White House officials had talked to a Post reporter about Plame, and also to NBC’s Tim Russert, Miller, Cooper and probably Novak.
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We still don’t know whether Novak was actually called and what he did. He has said that on advice of counsel he will not talk about his role until the case is over, at which point he will tell all. In any event, the statute criminalizes leakers rather than leakees unless the leakees are engaged in “a pattern of activities intended to identify and expose covert agents.”
We cannot know who told the grand jury what, but we do know that after the lower courts backed up Fitzgerald and the Supreme Court declined to hear the case, Time‘s Pearlstine, who serves on the board of the Committee to Protect Journalists (as do I), decided that in this instance the notes of his journalist Matt Cooper needed no protection. Pearlstine told the Times that his “knee jerk” reaction was that nothing was more important than a journalist’s keeping his word. But then “the journalist and the lawyer were fighting in my head” and “if presidents are not above the law, how is it that journalists are?” Pearlstine chose to rely on his head rather than his knee.
Thus far, the actions of both the special prosecutor and those he has summoned to testify have raised almost as many questions as they have answered. Yes, it seems brutally excessive, and dangerous social policy, to put Miller behind bars for refusing to give up a source. But since she never published a story on the matter, among the mysteries of this case are how and why Fitzgerald came to subpoena her in the first place. (The answer may lie in Judge David Tatel’s concurring opinion in the appellate court where he seemed to want to create a protection of journalists’ sources but decided that, based on secret evidence, Fitzgerald had good reasons to go after Cooper and Miller. Alas, the part of his decision referring to Fitzgerald’s basis for going after them is blacked out.) Was she herself, as some of her detractors hint, a secondhand source out to discredit Wilson, whose op-ed was a rebuke to many of her stories on Iraq? As Frank Rich has written, she “was one of two reporters responsible for a notoriously credulous front-page Times story about aluminum tubes that enabled the Administration’s propaganda campaign to trump up Saddam’s weapons of mass destruction arsenal.”
David Halberstam, criticizing Pearlstine’s decision to turn Cooper’s notes over to the special prosecutor, asked, “Is this a journalistic company or an entertainment company?” But if the answer is that it’s both, and the entertainment portion of a $5.6 billion company requires approval by the Feds for mergers, acquisitions and takeovers, where does one’s fiduciary duty lie? And if it is to protect your corporation’s assets, do they, as media lawyer Jim Goodale has maintained, include the First Amendment? In his book The Politics of Truth, Wilson states categorically that “the assertion that Valerie had played any substantive role in the decision to ask me to go to Niger was false on the face of it.” If, as Wilson claims, his wife did not suggest him for the job, what obligation did Novak, or anyone else, have to protect the identity of a source who misled them?
And what of the Times itself? On the surface, Miller is a First Amendment martyr and the Times, as it did in the Pentagon Papers case, has done itself proud. Second guessers, however, like the Post‘s David Ignatius, see Miller and the Times as having allowed the press “to be dragged into a no-win case that will weaken our ability to protect true whistle-blowers and thereby serve the public.” That, presumably, is why reporters like the Post‘s Pincus and Glenn Kessler and NBC’s Russert let their lawyers work out arrangements that provide Fitzgerald with the information he wanted without compromising the reporters’ sources.
Whether or not he ends up indicting the leakers, the question remains: Were his threats and calls for imprisonment vindictive overreaching? At the time the Intelligence Identities Protection Act was under consideration, in 1982, the civil liberties community was split. And although a less draconian version of the bill was ultimately passed, the more radical civil libertarians agreed with Representative Don Edwards, a former FBI agent particularly sensitive to First Amendment issues, who said during the floor debate that “no amount of tinkering can rehabilitate a law which criminalizes constitutionally protected freedoms of speech, press and political expression.” Jack Shafer, a columnist for Slate, has argued that Fitzgerald is using a law that “was meant to protect journalists…to create the procedural equivalent of an Official Secrets Act. This is bullying, pure and simple.” On the other hand, what should a prosecutor do when confronted with a statute in which the crime is leaking by a high government official and the (journalist) leakees are the only witnesses to this abuse of power? And where does the public’s right to know come into it?
None of these are simple issues, but here is where I come out.First and foremost, it is wrong to put reporters in prison for keeping faith with their sources. Our ideal of an open society, and the free flow of information it presupposes, depends on protecting and encouraging such whistle-blowers. Also, as Justice William O. Douglas has written, when juridical values conflict, “the press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class but to bring to fulfillment the public’s right to know.” Last and far from least, under the Bush Administration the free press has suffered a series of setbacks. Eric Alterman has documented in these pages how the White House has waged war on the critical press by curtailing its access to routine information, suborning friendly journalists and using other underhanded tactics [see “Bush’s War on the Press,” May 9]. Enough is enough. Undermining journalism at its sources is too much.
Speaking of sources, I understand the argument against a journalist ever blowing a source. Nevertheless, I believe that at the heart of a reporter’s promise to protect the identify of his source is a contract: You tell me the truth as you know it, and I will protect your anonymity. If the source breaks that agreement, there is no agreement. As Bill Kovach, chairman of the Committee of Concerned Journalists, and Tom Rosenstiel, director of The Project for Excellence in Journalism, have written, “A growing number of journalists believe that if a source who has been granted anonymity is found to have misled the reporter the source’s identity should be revealed. Part of the bargain for anonymity is truthfulness.” Los Angeles Times columnist Robert Scheer has suggested as much in the Wen Ho Lee case, in which the Los Alamos scientist falsely accused of leaking classified information is suing the government for violating his privacy. The judge has directed the journalists who published mis- and perhaps disinformation about him to reveal their sources.
As for the Times‘s legal strategy in defending Judith Miller’s refusal to cooperate rather than trying to strike a deal, I find Stephen Gillers of New York University Law School persuasive when he recalls that in 1975, when Congress for the first time put the federal rules of evidence in statutory form, they explicitly delegated to the courts the authority to elaborate a reporter’s privilege in the common law. In his concurring opinion in the 1972 case Branzburg v. Hayes, in which the Court said the First Amendment provides no automatic shield, Justice Powell seemed to invite future courts to develop a modest journalists’ privilege protecting them from unnecessary harassment by law enforcement. Who can say that the New York Times and its counsel Floyd Abrams were wrong to invite the courts down that road?
In the absence of a federal shield law, these controversies can be decided only case by case and conscience by conscience. But that is different from leaving it up to the corporate conscience. Time Warner’s conduct is a good example of why. When Pearlstine decided to turn the documents over to the grand jury, he told the Times that money wasn’t the issue. But in another story Lorne Manly and David Kirkpatrick reported that three executives involved in the internal deliberations, “speaking on the condition of anonymity because the company did not want them talking publicly about the matter” (I had to read that sentence twice), said that Pearlstine was convinced the judge might jack up the $1,000-a-day fine. Anyway, this is not about Pearlstine but whether promises–even by employees of mega corporations–should be protected.
Where does all this leave us? There is always the possibility that technically nobody is “guilty” because under the terms of the statute the person(s) disclosing Plame’s identity had to have known that she was truly “covert,” and maybe the leaker(s) didn’t know that; nevertheless, Fitzgerald may well pursue perjury and obstruction of justice cases against him (or them).
Be that as it may, if I am right, the matter of a reporter’s relationship to his/her sources won’t be resolved until we break up the media behemoths; transform the judiciary into one that shares the views of Justices Hugo Black, William O. Douglas and William Brennan about the primacy of the First Amendment; repeal the Intelligence Identities Protection Act; and recognize that criminalizing journalists’ conversations has only contributed to the confusions of the present situation.
But in case not all (or none) of the above happens, there are a few slender threads of hope on the legislative front: Republicans and Democrats have introduced several different bills for a federal shield law in both houses, claiming to offer journalists absolute protection but allowing the government to determine who is and is not a journalist, putting at risk independent journalists, not to mention bloggers. Conceivably the plight of Judith Miller will invite constructive legislation.
Whatever happens or doesn’t happen to Karl Rove, the whole episode is another black mark against an Administration that used the specter of WMDs to justify our invasion of a sovereign nation; and then, for political purposes, blew the cover of an agent who for twenty years has had WMD as her portfolio, doubtless setting back the antiproliferation cause in ways we cannot imagine.
