| The ensuing cacophony
of rumors, spin and positioning has created a level
of FUD that would make Bill Gates proud. We all hope
that one of the products of Patrick Fitzgerald’s
investigation will be a bit of clarity. But there
is one essential matter, intentionally obfuscated
by most voices now shouting into the Plamegate wind,
that can and should be cleared up now, without waiting
for the special counsel’s providence.
The utterly self-serving drumbeat that continues
to issue from the New York Times is the claim that
Miller’s status as a reporter conveys privilege,
which elevates her jailing to a secular martyrdom.
And the Times seems intent on treating that privilege
as absolute – if Miller says her source is confidential,
then no earthly force should be able to compel her
to reveal it. They seem to think that with sufficient
repetition they will convince someone – perhaps
themselves – that it is true merely because
they wish it so. But their circular reasoning seems
intended to preclude meaningful discussion of the
real issues at stake.
Virtually all observers agree that there are circumstances
in which a reporter should go to the mat to protect
a confidential source. But Ms. Miller, her employers,
and most commentators have been studious in their
avoidance of any discussion of the root reasons for
such protection. I think a clear discussion of the
underpinnings of the protection of anonymous sources
shows both why that protection should not apply here.
So let’s examine the reporter’s obligation
to sources to honor confidentiality. What is the true
nature of a reporter’s obligations in general,
and this duty in particular?
Protecting the confidentiality of a source is, I
would argue, a purely pragmatic, utilitarian construct.
Indeed, I don’t think anyone would argue to
the contrary when push comes to shove. Reporters protect
sources purely as a way of making their jobs easier.
And society does not generally pass laws or embrace
the concept of elevating certain jobs above all others
for their own sakes. Doctors are pretty damned important,
but in most circumstances we can sue them for malpractice.
So one’s status as a doctor does not confer
carte blanche to flout the law. When we protect doctors,
it is because there is a higher principle involved.
We create laws that encourage doctors to treat patients
and save lives. Good Samaritan laws immunize them
in narrow circumstances because in those circumstances
society has decided that the first principle –
saving lives – favors immunity.
So what is the first principle for the press: in
other words, what is the primary duty owed by a reporter?
Nobody talks about it, but the answer is blindingly
obvious: a reporter’s primary duty is to the
truth – and not just to finding it and knowing
it, but publishing it and thus sharing it with us.
It is a as clear a Kantian categorical imperative
as one can find, and I cannot even imagine a newspaper
or reporter expressly denying its primacy.
Begin here, and the reach and limits of shield laws
become clear. The reporter’s duty to uncover
and share hidden truths is unique, essential and irreplaceable.
Protecting sources is merely a means to that end;
without reference to that duty, giving reporters the
right to defy judicial process is mere protectionism.
So the reason we tolerate confidential sources is
that we expect reporters to use this tool to shed
light on important truths. When the tool is used in
the service of this higher cause, we are willing to
put up with results we would otherwise abhor: protecting
a bad actor, and even letting lesser evils go unpunished.
But if by shielding a source, for whatever reason,
a reporter keeps the public from a larger truth, then
there can be no gainsaying the conclusion that the
reporter violates the categorical imperative. And
because the identity of the source is generally an
important part of the story (else why would the source
ask for anonymity?), the bar for burying that fact
should be high. Absent careful application, it is
quite possible that hiding the identity of a source
moves us further from the truth, rather than closer
to it.
An obvious corollary is that magnitude of the story
should limit the stature of the person granted anonymity.
If Donald Rumsfeld calls up a reporter and offers
anonymous dirt on an Army grunt – perhaps that
he cheats on his taxes – the reporter should
decline. The leak itself is far more newsworthy than
the specifics being leaked. While perhaps not ironclad,
it is a pretty good starting point to assume that
sources can only leak up anonymously.
An argument that has been raised by Miller’s
supporters is the “chilling effect” claim:
that unless sources are assured of a very broad guarantee,
their willingness to talk will be curtailed. I am
generally sympathetic to this kind of argument, and
consider myself as close to a 1st Amendment absolutist
as can be. But the argument is simply not persuasive
here. First, even Floyd Abrams would not argue that
reporters should automatically guarantee anonymity
to every source. There is always a quid pro quo; the
real problem with the current system is that the quid
of easy access to power is bought with the quo of
easy dissemination of whatever message the powerful
wish to transmit. So nobody is advocating a system
that would truly eliminate any vestige of chilling
effect. Second, as noted above, I don’t think
anyone would gainsay the assertion that we don’t
want to encourage or enable all possible sources.
I think any possible chilling effect on the sources
we want protected would be ameliorated by a bright-line
rule – something we plainly don’t have
today.
So let’s apply this framework to the Plame
outing. The story confidentially given to Matt Cooper
and Judith Miller was the assertion (an assertion
we now know was highly misleading at best) that Joe
Wilson’s trip to Niger was his wife’s
doing. This assertion, standing by itself, is virtually
meaningless, and a red herring at best. “Don’t
listen to him – his wife sent him!” is
logically parallel to defending against a charge of
grand theft auto by saying, “but the car was
blue!” And of course there is the otherworldly
experience of seeing the most inbred, nepotistic crew
in memory arguing that getting a job through family
connections is inherently problematic – as if
the employment agency that placed Michael Brown and
nominated Harriet Miers is above distributing jobs
based on connections. But I digress.
Two of the most powerful men in Washington slamming
a former ambassador and a CIA operative certainly
seems to violate the “leak up” corollary.
But for the sake of argument, let’s assume that
the story Rove and Libby offered up on condition of
confidentiality – the family connection behind
his Niger visit – was somehow a “truth”
worthy of the tool of confidentiality. Did Miller
share that truth with us? No. She never wrote that
story. Is there a larger truth here? Most of us think
a conspiracy at the highest levels of government to
discredit a whistleblower by blowing the cover of
a CIA operative fits that definition. Needless to
say, Miller never wrote that story either.
Did Miller share with us any larger truths? Unless
you consider revelations about the lack of “color”
and privacy in prison to be especially newsworthy,
the answer has to be, not so far.
It is at least theoretically possible that Miller
could still offer up a story that justifies protection
of her sources. But think about the throw weight the
story would have to have to justify the truths she
has chosen to hide. Unless her story tells us a truth
on the level of exposing the complicity of George
Bush and/or Dick Cheney in the Plamegate conspiracy,
it is hard to see how offering anonymity to Rove and
Libby could possibly be justified. And the interest
on the amount owed, so to speak, has been compounding
throughout the two-plus years she sat on the story.
If the Times doesn’t have that kind of blockbuster
in the wings, the motive for its stonewalling on the
level of vague generalities is obvious: scratch past
the “guardians of liberty” veneer, and
the whole construct instantly crumbles, taking a venerable
institutional reputation with it.
If Miller and the Times break the kind of story that
justifies their actions, I’ll be the first to
offer my apologies and congratulations. But I’m
not holding my breath.
John Steinberg is a Senior Recidivist with the
Poor Man Institute for Freedom and Democracy and a
Pony. He bloviates regularly @ www.bluememe.blogspot.com.
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