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Thursday, October 07, 2004

NYT reporter Judith Miller thinks her "job" is to defy the law

My commenters gently but justifiably mock me for so often expressing astonishment over the New York Times and the rest of the mainstream media.  But despite my best efforts to lower my expectations, I continue to find myself astonished on a regular basis.  Today's jaw-dropper (boldface added):

"I think it's really frightening when journalists can be put in jail for doing their job effectively," [New York Times' reporter Judith] Miller told reporters outside the courthouse.

Okay, let's go ahead and dress Ms. Miller in the radiant white silk robes of a High Priestess of the Mainstream Media.  We can extinguish all the ambient lighting — her righteous glow illuminates the courthouse steps beyond the poor power of technology to supplement.  "Do you know who I work for?" she might as well have said, "And don't you understand that as a High Priestess of the Mainstream Media, my job is to flout the lawful orders of the United States District Courts?"

What says the fellow inside the building, the one in the cotton-polyester black robe, holding a gavel under the regular GSA-issue fluorescent lights?

A federal judge held a reporter in contempt Thursday for refusing to divulge confidential sources to prosecutors investigating the leak of an undercover CIA officer's identity.

U.S. District Judge Thomas F. Hogan ordered New York Times reporter Judith Miller jailed until she agrees to testify about her sources before a grand jury, but said she could remain free while pursuing an appeal. Miller could be jailed up to 18 months.

Hogan cited Supreme Court rulings that reporters do not have absolute First Amendment protection from testifying about confidential sources. He said there was ample evidence that U.S. Attorney Patrick Fitzgerald of Chicago, the special prosecutor in the CIA leak case, had exhausted other avenues of obtaining key testimony before issuing subpoenas to Miller and other reporters.

"The special counsel has made a limited, deferential approach to the press in this matter," Hogan said.

Fitzgerald is investigating whether a crime was committed when someone leaked the identity of CIA officer Valerie Plame, whose name was published by syndicated columnist Robert Novak on July 14, 2003. Novak cited two "senior administration officials" as his sources.

I'm quite sure that when Ms. Miller's and the NYT's superb counsel, Floyd Abrams, appears before the United States Court of Appeals for the District of Columbia Circuit to seek the appellate review that Judge Hogan very graciously permitted him to undertake with his client still outside bars, he'll find a more diplomatic way to put things.  He'll talk about the First Amendment and freedom of the press; he'll talk about the important role of the press in a constitutional democracy, and why the press should be given a high degree of protection from prosecutorial subpoenas designed to uncover criminals.  The D.C. Circuit will write a short per curiam opinion, perhaps praising Mr. Abrams' efforts and acknowledging his clients' misguided sincerity, and will re-affirm that the press has indeed gotten all of the extraordinary deference to its insistence on protecting "confidential sources" that controlling Supreme Court precedent permits. 

And then — barring a change of heart on her part — they'll put Ms. Miller into jail.

Ms. Miller will not be in jail for "doing her job effectively."  In fact, as Mr. Abrams noted in trying to mitigate her punishment, and Judge Hogan acknowledged, Ms. Miller actually never wrote a story based on whatever her confidential source or sources told her.  She's a reporter who didn't report. 

No, Ms. Miller will be in jail for contempt of court for intentionally, knowingly, and above all willfully disobeying a lawful court order — and do not her words from the courthouse steps positively drip with contempt for the court, and the law, and the notion that she and the NYT are subservient to it?  Ms. Miller will richly deserve her jail time, and I will have utterly no sympathy for her.  They should hang a sign outside the door of her cell, in fact:  "Martyr without a clue."

Posted by Beldar at 07:09 PM in Law (2006 & earlier), Mainstream Media | Permalink


Other weblog posts, if any, whose authors have linked to NYT reporter Judith Miller thinks her "job" is to defy the law and sent a trackback ping are listed here:

» I'm Confused. from Just Some Poor Schmuck

Tracked on Oct 11, 2004 11:25:57 PM

» Media Watch: 2004-10-12 from Winds of Change.NET

Tracked on Oct 12, 2004 2:01:32 AM

» Media Watch: 2004-10-12 from Winds of Change.NET

Tracked on Oct 12, 2004 2:16:26 AM

» Beldar's scorecard on the DC Circuit's Plame decision today: Prosecution 34, Journalists 0 from BeldarBlog

Tracked on Feb 16, 2005 1:13:54 AM


(1) dennisw made the following comment | Oct 7, 2004 9:06:40 PM | Permalink

Ms. Miller & attorney will argue that freedom of the press is at stake. That if she is forced to divulge names of sources this will hinder the ability of our press to cultivate anonymous sources. Journalists have sources they work with for years. Sometimes an article gets written (based on these sources) and sometimes it doesn't.

(2) Kent made the following comment | Oct 7, 2004 9:24:44 PM | Permalink

Of course, it isn't freedom of the press that is at stake. Whatever the outcome, the press will still be free to publish the same kinds of things it has always published.

What is at stake is the right of a source to pass along whatever they like to a reporter, without fear of consequences. Which is not a right I find enumerated anywhere in the Constitution.

(3) MaDr made the following comment | Oct 7, 2004 9:29:20 PM | Permalink

I haven't followed this so I'm caught totally uninformed. I thought there was some question as to whether Ms Plame was really exposed, ie she was already publically known as a CIA employee that worked on WMD issues. I assume that it's already been determined that she was indeed exposed. If not, there was no reason to go any further.

Last time I remember hearing Miller's name, it was with regard to tipping off a suspected(?) terrorist supporting charity prior to a FBI raid. Guess I better start paying attention.

I hold the Lmsm in such low regard, that my only question is, "Can I bring the rope?"

(4) Joatmoaf made the following comment | Oct 7, 2004 9:38:39 PM | Permalink

Your point is well made. She didn`t "report" anything so the 1st Amendment doesn`t apply.
I guess she thinks that because she`s a reporter she`s entitled to blanket protection at all times.
Since I`m not a lawyer I would also like to point out, with absolute confidence that I`m right, and if I`m not it doesn`t matter because my legal reputation is still intact, that the 1st amendment isn`t as all encompassing as the media would like everyone to believe. It doesn`t protect criminal activity. It`s abused by the media more than anyone.

(5) lyle made the following comment | Oct 7, 2004 10:35:36 PM | Permalink

MaDr, that's what I remember, too.

Either Fitzgerald is pursuing two separate leak-related cases, or the terrorist tip-off is connected to the Plame case. If it's the latter, then the investigation might be more complex than we think.

(6) Al made the following comment | Oct 7, 2004 10:53:42 PM | Permalink

I think Fitzgerald is pursuing both cases. But I also think the Plame case is more complex than it seems.

(7) Birkel made the following comment | Oct 7, 2004 11:15:14 PM | Permalink

Mr. Fitzgerald-
"Is it true, Ms. Miller...?"

Ms. Miller-
"It depends on what the definition of 'is' is.

See, Beldar, no reason to reevaluate your belief in the liberals. Only the specific facts change. Miller's defense is hooey as any 2L could tell you.

(8) RD made the following comment | Oct 8, 2004 3:09:41 AM | Permalink

Nice forum Beldar. So this is where all the educated dudes are hanging out. You guys' liberals are dropping out like flies.

(9) ketchikan made the following comment | Oct 8, 2004 3:27:05 AM | Permalink

On a related subject: If the press is given "special" protection for their "right" to report shouldn't they also be given "special" punishment when they purposefully deceive?

(10) RW made the following comment | Oct 8, 2004 6:55:38 AM | Permalink

I think Ms. Miller's statement reveals the typical liberal mindset--that actions have no consequences. There are times when your ethical obligation exceeds your legal protection, and for Ms. Miller, this may be one of those occasions. However, in such a circumstance, you have to accept the consequences of your actions--good, bad, indifferent; they don't call it the high road for nothing.

(11) ncoic6 made the following comment | Oct 8, 2004 7:00:02 AM | Permalink


To extend your analogy - does it follow that the whole mess could be easily (and less expensively) solved by having Mr. Novak reveal all to Fitzgerald?

(12) rob made the following comment | Oct 8, 2004 7:37:43 AM | Permalink

The press has never had the absolute privilege to protect confidential sources that it has often sought to assert, even with the various "shield laws" that exist. There is a tension here between the public interest in reporter's ability to obtain and publish information (especially where official misconduct may be involved) -- hence the ability to protect their confidential sources -- and the public interest in the administration of justice. The courts have generally resolved these tensions on a case by case basis, insisting on significant deference to reporter's need for protecting confidential sources, but ultimately upholding the courts' right to obtain information from the reporters where other means have been exhausted.

I don't think even Floyd Abrams can win this one for the Slimes.

(13) Bostonian made the following comment | Oct 8, 2004 7:50:36 AM | Permalink

Court orders are only for the little people, don't you know.

(14) Dave Schuler made the following comment | Oct 8, 2004 7:53:56 AM | Permalink

It's not called the 4th Estate for nothing. For reasons not clear to me the press feels that it's role is to oppose the established order. Whatever that might be.

(15) TheSophist made the following comment | Oct 8, 2004 9:11:54 AM | Permalink

Just curious, as I've never been a part of the 4th Estate....

Miller's position appears to be that she's doing her job effectively by refusing to divulge a confidential source. Okay, fine. Let me accept that for the moment.

Question: Do journalistic organizations have a hierarchy and a chain of command that most other commercial (and not-for-profit) organizations have? In other words, does Miller have a boss? An editor, a higher-up, to whom she must report vis-a-vis her performance as a journalist?

Or are all reporters de-facto independent contractors whose actions are not directly under the control of the newspaper/organization for which they work?

Put another way: If her editor were to order Miller to comply with the court order, would she then be doing her job if she refuses to divulge the source? Or is there some rule of journalistic ethics that prohibits a reporter from disclosing that information even if it were to come from the boss/editor?

Why I care: If reporters have a boss whose orders and directions must be followed, and refusal to obey constitutes grounds for dismissal (as in most other companies and organizations), then Miller's refusal to testify is not within the scope of her "job" as a journalist. In this case, seems to me that it isn't only Miller who is in contempt of court, but her 'boss' and that person's 'boss' and so on up the chain of command at the NYT who are also in contempt of court. In fact, if such is the case, then I'm leaning towards absolving Miller of responsibility and holding whoever gave the order to refuse compliance in contempt instead. After all, if Miller's been ordered by her boss not to comply, then she is doing her job by refusing.

If, on the other hand, reporters do not have a 'boss' in the traditional sense, then it seems to me that Miller is indeed in contempt of court. But the NYT cannot evade responsibility altogether. NYT, as her... what would it be? Employer? Client? Whatever the relationship, it seems that the NYT's must at least urge/order/demand that she comply with a lawful court order. Absent that step by the NYT -- in effect, condoning her illegality -- I feel that the organization itself is also subject to legal sanction.


(16) Steve L. made the following comment | Oct 8, 2004 11:26:09 AM | Permalink

The tip-off about the raid came from Philip Shenon of the NYT (as charged by the DOJ.) Miller was involved because the DOJ wanted phone records in the investigation. Whether the two events are linked in any way is beyond my level of knowledge.

(17) Mikey made the following comment | Oct 8, 2004 11:58:59 AM | Permalink

Everybody wants justice. Until it actually shows up, that is. Poor Ms. Miller, being treated just like any other citizen of the republic. Kind of sad, really, to watch an adults delusions of their own importance die.

(18) holfast made the following comment | Oct 8, 2004 12:23:27 PM | Permalink

To be fair (and I hate to be fair about the NYT, since they never are), Miller is actually one of their better reporters - not nearly as far out on the let wing as most the Timescritters. I think she's worng on this - in fact she's totally full of it - but in her case (as opposed to the Times itself) this is more of a "cult of journalism" thing (it's not just a job, it's a calling!) than a liberal thing.

(19) MD made the following comment | Oct 8, 2004 12:59:37 PM | Permalink

"I'm being put in jail for doing my job effectively."

Well, . . . No.

You will be put in jail for refusing to answer questions before a criminal grand jury.

(20) jshep made the following comment | Oct 8, 2004 1:34:15 PM | Permalink


(21) Beldar made the following comment | Oct 8, 2004 3:46:35 PM | Permalink

Jshep, no one is currently in jail. Nor has anyone yet been charged with a crime. The grand jury is investigating to determine whether to charge anyone in connection with the revelation of Ms. Plame's CIA job. Ms. Miller of the NYT was subpoenaed to testify before the grand jury, and has been ordered by the court to testify, but has refused to testify. That refusal has prompted the prosecutor to ask the court to hold her in "civil contempt" for violating the court's order that she testify, and the court has agreed, and has found her in civil contempt of court — the potential punishment for which is to be put in jail until she "purges" herself of the contempt (i.e., agrees to follow the court's order to testify).

Novak may or may not have been subpoenaed to testify before the grand jury. Its proceedings are secret, and Novak hasn't said.

Neither Mr. Novak, Ms. Miller, nor any other reporter is suspected of having committed a crime in publishing the Ms. Plame's CIA job. Rather, the possible crime that's being investigated by the grand jury is the revelation of the details that Mr. Novak published by whoever was Mr. Novak's (and probably other reporters' common) source. It's the source that faces potential imprisonment for committing a crime.

(22) Beldar made the following comment | Oct 8, 2004 3:53:35 PM | Permalink

holfast, I agree with you that this isn't a traditional liberal versus conservative issue. If it were, one might expect politically liberal journalists to be rushing to cooperate with the prosecutor, since the likely target of the criminal investigation is someone in the Bush administration who was supposedly leaking the details of Ms. Plame's CIA job status to somehow smear her husband, administration critic Joe Wilson.

(23) Beldar made the following comment | Oct 8, 2004 4:13:26 PM | Permalink

Sophist, certainly in Texas, but also I believe in most if not all other states, even an "at will" employee (one working without a contractual commitment of continued employment, who ordinarily can be discharged with or without cause, with or without advance notice) can't be lawfully fired for refusing an employer's instruction to disobey the law. It's never anyone's "job" to break the law.

The court's order is directed to Ms. Miller as an individual, and regardless of whether the NYT supports her refusal to testify (as indeed it does) or were to take some other position, the legal responsibility is hers personally.

I believe that Ms. Miller's position is that her refusal to testify is based on her perceived personal duty as a professional journalist to protect her confidential sources, rather than being founded on a directive from her employer. Presumably she'd stick to her guns even if the NYT directed her, as its employee, to testify. Of course, it won't do that. Rather, from Arthur Sulzberger, Jr. on down, the NYT is supporting her position, and almost certainly providing her with Mr. Abrams' excellent (and not inexpensive) services.

The NYT's enthusiasm extends to arguing that the governmental or corporate employers of confidential sources would be practicing "intimidation" by instructing their employees who've been confidential sources to waive their rights to insist on remaining confidential:

Prosecutors in the Plame matter have asked people suspected of disclosing her identity to sign waivers that instruct journalists to reveal confidential conversations. Tim Russert of NBC and Glenn Kessler and Walter Pincus of The Washington Post also testified. They and Mr. Cooper said they relied on direct assurances from their sources or the sources' lawyers that they were free to do so rather than on the waivers.

Bill Keller, executive editor of The Times, said Ms. Miller would also not take waivers at face value. The officials who signed them, he said, may have done so because they feared that refusing would cast suspicion on them or endanger their jobs.

"This business of sources' signing waivers deserves a lot more attention," Mr. Keller said, speaking to reporters outside the courthouse. "This is going to be all the rage in both government and corporate circles as a way to intimidate employees into not letting reporters know when they see something amiss."

In other words: If an employer urges its employees to let the truth come out, it's practicing intimidation. If a criminal whose identity is being shielded from disclosure by virtue of his insistance that a reporter protect his confidentiality as a source has a change in heart and waives the so-called confidential source privilege — which supposedly exists for his benefit, to encourage such potential sources to become whistle-blowers in other situations — that, too, is considered reprehensible by the NYT. The NYT has thus foresquare aligned itself with criminals — even those who aren't seeking the NYT's continued protection — and against the revelation of the objective truth and the enforcement of federal criminal laws designed to protect intelligence agents. In the twisted, bizarro world of mainstream media journalism, they think it's their duty to take this position.

I repeat, I'll have no sympathy for Ms. Miller when they close the jail door behind her.

(24) Whigfarmer made the following comment | Oct 8, 2004 8:34:28 PM | Permalink

My own personal theory on this is that Wilson himself "outed" his wife as a CIA agent. Does anybody really believe that a reporter with The New York Times would go to jail to protect someone from the Bush administration?

(25) Crosby Boyd made the following comment | Oct 8, 2004 11:15:26 PM | Permalink

What makes this case unique is that the Times itself pushed hard to get the administration produce the source. They accused the administration of retaliating against Wilson for his outing of the Niger uranium docs.

The administration turned out to be very cooperative and now the shoe is on the other foot.

Not the administration that's stonewalling, it's the Times.

(26) MD made the following comment | Oct 10, 2004 11:16:01 AM | Permalink

Whigfarmer, Agreed.

(27) Zev Sero made the following comment | Oct 10, 2004 9:29:06 PM | Permalink

I'd offer the NYT a deal: if it will run an editorial unequivocally stating that no crime was committed, and therefore that there's no need for Fitzgerald's investigation, and if it undertakes never again to insinuate otherwise, whether in the news or editorial pages, then Miller doesn't have to answer any questions. If the NYT still believes, as it did a year ago, that the investigation is of the utmost importance to the integrity of our very system of government, then it must direct Miller to answer the question.

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