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JUDITH MILLER
Plame and Simple

By John Steinberg | RAW STORY COLUMNIST

While Judith Miller racked up her frequent liar miles in the Alexandria Detention Facility, not much seemed to be happening in the Plame investigation. However, her release seems to have pushed the cosmic fast-forward button; stunning revelations and developments have become almost daily events.

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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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