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Thursday, July 07, 2005

Is Judith Miller engaged in a noble act of civil disobedience?

Distinguished blogger and Wisconsin Law School Professor Ann Althouse wrote this today about Judith Miller's jailing:

I respect civil disobedience, defying the law for a cause. Part of it is accepting the consequences, as Judith Miller is doing. It's a very powerful image, a person going willingly to jail for a principle deeply believed in. It can work to produce a change in the law.

Of U.S. District Judge Thomas Hogan's comparison of Ms. Miller's conduct to that of a defiant child, Prof. Althouse wrote:

There being no federal journalist's privilege, the judge had to punish Miller, but he didn't have to say that. His effort to strip all dignity from her as she made her grand gesture backfired and made him look small.

I agree that some instances of civil disobedience can be admirable. Recall, for example, the image of the lone Chinese protester facing down the on-coming tank column in Tiananmen Square in 1989. But I respectfully and emphatically disagree that Ms. Miller is now engaged in a noble act of civil disobedience. Here's a (somewhat edited and inevitably expanded) reprint of my response in her blog's comments:

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Prof. Althouse, you wrote: "There being no federal journalist's privilege, the judge had to punish Miller ...."

Okay, then, you, I, Judge Hogan, and a unanimous three-judge panel of the DC Circuit are all on record as agreeing that Judith Miller is a scofflaw who has willfully defied a valid order of a proper court having jurisdiction over both her and the subject matter. (The en banc DC Circuit and Supreme Court also declined to make a contrary ruling, but let's give Ms. Miller the benefit of the doubt by recognizing those as rulings not on the merits.)

"[H]er grand gesture" is by definition one of defying the law. We agree on that, do we not? The issue then becomes whether this particular act of "civil disobedience" is or isn't praiseworthy, admirable, grand, principled, and cloaked with "dignity."

Every other reporter and press organization involved in this controversy has made the opposite decision to Ms. Miller's (as supported and subsidized by her employer, the NYT). None of them has joined in her "grand gesture"; whatever dignity she's exhibiting, they all lack; whatever principle she seeks to vindicate, they have proved themselves willing to sacrifice.

But the only principle that she can be trying to vindicate is her "right" — not a legal one, we all agree, for the law provides no such right — to ignore the release concededly granted by her source that frees her from her original promise of confidentiality, based on her sole, subjective determination that the release was coerced and invalid. Her case is not one in which she's protecting a confidential source who claims to want to be protected, but rather one in which, to the question "Should I reveal your identity?" Ms. Miller will not take "yes" for an answer.

Nevertheless, Prof. Althouse, you see in that defiance of the law, and that nonconformance with the actions of every other reporter and news organization involved, and that insistance on following her own assessment of someone else's free will over his/her own assessment, some sort of "dignity." If so, how is that "dignity" distinguishable from psychosis? Surely it is not the intensity of her subjective sincerity that gives her dignity, is it? Timothy McVeigh was almost certainly as subjectively sincere in his beliefs until the moment that the lethal chemicals flowed through his veins. Is her dignity the same as his?

Judge Hogan and the unanimous three-judge panel of the DC Circuit — including the sole judge thereupon who agreed that the federal courts ought to craft a shield law comparable to the statutes passed by many states — all agreed that the prosecution's showing of need and exhaustion of alternatives here would have been sufficient to overcome any qualified privilege. Does her dignity come, then, from submitting to incarceration in order to promote the creation of a new rule of law that would not have kept her out of jail?

We should admire someone who wants to change the law to create an absolute privilege, unique to news reporters (however defined), that can never be overcome no matter how essential the reporter's testimony may be, no matter what prior lengths the prosecution has gone to in exhausting other means, and with that same reporter being the sole and absolute judge of whether her source has been coerced in releasing her from her promise of confidentiality? Is that what you think the law should become, Prof. Althouse? For that is exactly what the law must change into, in order for Judith Miller's defiance of the current law to be "principled."

Having failed to persuade any of the dozens of federal judges who've looked at her contempt citation that Ms. Miller ought not be jailed, Ms. Miller's superb attorneys had just filed papers asking with a straight face that she serve her sentence at home. She asked to be grounded — a punishment that parents impose upon defiant and rulebreaking children. There is "dignity" in that?

Ms. Miller is in fact acting like a selfish, spoiled, petulant child. I can't quite blame the judge at whom her contempt has been focused for saying so. He could have said much worse, with absolute factual justification.

I see no legitimate principle at stake here; I see no dignity, nothing grand. I refuse to even impliedly condone her lawlessness, or to impliedly encourage others to emulate her defiance, by pretending that there's anything at all noble in what she's done or what she's doing. I respectfully dissent.

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UPDATE (Fri Jul 8 @ 2:30pm): Prof. Althouse has graciously pointed out in a comment on her own blog (which she also thoughtfully re-posted here in my own blog's comments) that, contrary to my original inference, she has not taken a position "on whether Judith Miller made the right call that this was a matter that justified civil disobedience or whether if there were a federal statutory reporter's privilege it ought to cover the situation in Miller's case." Fair enough, and much appreciated.

Posted by Beldar at 05:44 PM in Law (2006 & earlier), Mainstream Media | Permalink

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Comments

(1) cubesnviews made the following comment | Jul 7, 2005 6:03:52 PM | Permalink

Of course Judy Miller is the only one in a position to evaluate whether or not her source's waiver is voluntary - to submit that determination to any kind of review would be to reveal the identity of the source.

As she recently explained at a panel discussion, the government currently over-classifies information while simultaneously requiring candidates to sign waivers upon employment - the result being that it becomes a fireable offense for almost any government employee to talk to the press.

What do you think the role of the press is in a democracy? If you assume that the media is still the noble institution it was in days gone by, don't you agree that a reporter's job is to help us, the public, keep tabs on the government? If so, isn't that role compromised when a reporter can't make any credible promises of confidentiality to informants?

(2) Beldar made the following comment | Jul 7, 2005 6:27:23 PM | Permalink

Cubesnviews, I and every other trial lawyer — who are all bound by the most hoary and sacred of principled privileges, that attaching to attorney-client communications — routinely submit privileged information for in camera (secret) review by the courts. If my client's claim of privilege is sustained, then the confidences contained in those materials are never published to my client's opponents or to the public. If my client's claim of privilege is overruled, and I exhaust all appeals from that determination, then yes, the material becomes available at least to my client's opponents, and perhaps (usually) also to the public.

A court can likewise make an in camera determination of the voluntariness of a source's waiver and, if the waiver is indeed found to have been invalid due to coercion, the court can continue to maintain the source's confidentiality, both from the public and from the prosecution and grand jury.

Without some outside means to verify assertions of privilege, the mere assertion of a privilege would give the party making that assertion limitless power to hide evidence at his whim. That isn't, and ought not be, the law.

A reporter can make, and a source may reasonably choose to rely upon, only such promises of confidentiality as the law will permit the reporter to keep. State shield laws create qualified privileges; even in federal court where such shield laws do not apply, the DoJ adheres to guidelines (and did so in this case) that require prosecutors to demonstrate their specific need for a source's identity and that they have exhausted other means of trying to obtain that information. I'm entirely content that "reporters" and the "media" operate within these laws, and I'm entirely unpersuaded that it is either practical or principled for reporters and the media to be made wholly exempt from them.

(3) Jim Rhoads (vnjagvet) made the following comment | Jul 7, 2005 7:55:36 PM | Permalink

I think the Times and Ms. Miller are playing to the gallery (the self-appointed "intellectual elite") on this one.

I respect Ms. Miller as a reporter, and think she is one of the more professional on the Times staff. Nonetheless, when the court has acted for purposes of this case as if there were a qualified privilege and in essence ruled the privilege was overridden for security and criminal enforcement reasons and this ruling was upheld by one of the First Amendment's more reverently adherent Courts of Appeals after consideration en banc, and SCOTUS denied cert., the string ran out.

Judge Hogan had no choice, and I suspect at least 95 out of 100 Federal District Judges would have ruled as he did.

But Nooooooo, Ms. Miller, wants to arrogate the power of disclosure solely to herself. Congress would never give her that power, nor would any other legislature in the United States. So what "just" law is her "principle" advocating?

I sure don't see it.


(4) ed made the following comment | Jul 7, 2005 9:48:35 PM | Permalink

Hmmm.

Considering how many journalists have been caught fabricating sources and quotes, I'm not at all impressed by their desire for a shield law.

So how, with a shield law in place, could anyone ensure that supposed sources are not only honest, but actually exist? Wouldn't such shield laws protect these journalists even more from civil lawsuits? Couldn't they print the rankest libel, and then hide behind the shield law?

No thanks. If the journalists had fully earned such protections in the past, then I could see giving them their due. But all I see is and endless history of deceit, fraud, fabrication and lies.

(5) Xrlq made the following comment | Jul 7, 2005 10:25:04 PM | Permalink

But the only principle that she can be trying to vindicate is her "right" — not a legal one, we all agree, for the law provides no such right — to ignore the release concededly granted by her source that frees her from her original promise of confidentiality, based on her sole, subjective determination that the release was coerced and invalid. Her case is not one in which she's protecting a confidential source who claims to want to be protected, but rather one in which, to the question "Should I reveal your identity?" Ms. Miller will not take "yes" for an answer.

I missed that part of this brouhaha. Do you have a link? Is there any evidence the consent was genuinely voluntary? "I don't wat to be outed but I don't want you going to prison over it, either" doesn't count; most clients would "voluntarily" waive legitimate privileges too, if it came to that.

(6) Beldar made the following comment | Jul 8, 2005 2:40:21 AM | Permalink

Xrlq, my friend, I'm relying mainly on the news reports of Ms. Miller's employer, the NYT. One such report is the same July 7th Adam Liptak piece that Prof. Althouse linked in her post and that I re-linked in my quote from her post; it's here, and says this:

Investigators have presented many government officials with waiver forms instructing journalists to ignore pledges of confidentiality. Mr. Cooper, Ms. Miller and other journalists have said they view such waivers as coerced and ineffective....

In her statement in court, Ms. Miller said she had received no similar permission [to that which Time's Matt Cooper received from Lewis "Scooter" Libby and Karl Rove] from her sources....

The other is from July 6th, also by Adam Liptak and a co-author, Maria Newman, which appears here and says:

Mr. Fitzgerald also said in the court papers that the source for both Mr. Cooper and Ms. Miller had waived confidentiality, giving the reporters permission to reveal where they got their information. The prosecutor did not identify that person, nor say whether the source for each reporter was the same person.

Mr. Cooper told the judge today while he had been told his source had signed a general waiver of confidentiality, he would only act with a specific waiver from his source, which he said he got today.

Finally, I'm also relying in part on comments that NYT executive editor Bill Keller made in an interview with Terence Smith on PBS' NewsHour program on Wednesday, July 6th:

TERENCE SMITH: Now, the prosecutor made the point in court that not only does he know the identity of Judy Miller's source, that he — that source has signed a waiver of confidentiality, in which case, what is Judy Miller defending?

BILL KELLER: I don't know whether the special prosecutor knows the identity of her source. I do know this: that Judy Miller made an absolute pledge to her source that she would not reveal his name or the substance of their conversation, and to this point, she has received no waiver or release that she regards as freely given anyway from that source.

TERENCE SMITH: Although, the source apparently has signed such a waiver, as did other officials in the White House.

BILL KELLER: Well, Judy has said — and I think she's absolutely on solid ground — that a waiver that's signed with your employer looking over your shoulder is hardly something given, you know free and clearly....

TERENCE SMITH: And finally, Bill Keller, is The New York Times seeking or expecting the sort of personal, unambiguous waiver of confidentiality from Judith Miller's source that Matt Cooper says he got this morning?

BILL KELLER: Well, I can't speak for Judy. I can only speak for myself, and I guess for the paper. I certainly would be delighted if Judy's source could provide her with what she would regard as a convincing free absolution, but, as I said before, at this point, she hasn't had a waiver that she believes was independently given.

Beyond this, I know of no "evidence" (loosely defined) cutting one way or the other as to whether Ms. Miller's source's consent was or was not voluntary. But everyone seems to agree that Ms. Miller has indeed gotten some sort of "yes" for an answer, and that she nevertheless has refused to accept it.

I emphatically do not agree with with Ms. Miller or the NYT that consent given at an employer's insistence, on pain of being fired, is therefore automatically invalid. Under the law, "voluntary" does not mean "guaranteed in advance to be free from any and all adverse consequences." Courts accept guilty pleas every day, for example, that are given upon pain of possible prosecution for additional charges or stiffer sentencing. The fact that the pleader's decision is influenced by his/her desire to avoid those consequences does not make the plea involuntary or invalid.

Ms. Miller's view is likewise akin to that of the person who tries to avoid contractual obligations by claiming he was under "duress" when he assented to those obligations. That's a common layman's error, but every law student learns in his first-year contracts course that "duress" requires far more "compulsion" than merely facing unpleasant-but-lawful consequences. It very nearly requires the proverbial "loaded gun to the head" — and not a metaphorical "gun" (like dismissal from employment), but a real one. Her apparent belief that an employer's "looking over [the source's] shoulder" is enough to invalidate his waiver is simply contrary to the law.

Under her standard, a source could only give effective consent if he were immunized from any and all repercussions. And she — not the source — gets to be the sole judge of whether the immunization is adequate or the potential repercussions are too harsh. The practical effect of making the reporter the sole arbiter under a bogus standard is to make every promise of confidentiality extended by any reporter always unwaivable.

Xrlq, you also wrote,

"I don't want to be outed but I don't want you going to prison over it, either" doesn't count; most clients would "voluntarily" waive legitimate privileges too, if it came to that.

Again, however, I respectfully disagree. Nobody goes to jail for refusal to waive a legitimate privilege; they go to jail when a privilege has been determined not to exist, a lawful order compelling disclosure has been entered, and that order has been defied. When a privilege claim has been rejected, the claimant (here, the confidential source) may certainly be influenced to give permission for the secret information to be made public by the reporter, lawyer, priest, spouse, psychotherapist, etc., based on the claimant's desire not to see that person jailed for his/her defiance of the law for the ostensible protection of the source. But again, that does not mean the waiver or release is legally invalid.

So I reformulate your question this way, my friend: What reason does Ms. Miller or anyone else have for believing that her source's waiver was the product of something that the law recognizes as sufficient to invalidate the source's choice? I'm not aware even of any speculation that her source's waiver was the product of torture or threats of imminent bodily harm or death, nor am I aware of any basis for speculating that her source was anything other than fully informed as to the potential consequences both of giving and refusing to consent to the waiver.

The burden of pleading and proving facts sufficient to maintain an assertion of privilege is on the one making that assertion — here, Ms. Miller. Unless or until she or her defenders like Mr. Keller can come forward with at least an assertion of fact that, if proved, would negate the effectiveness of her source's waiver, I can't take that claim seriously. And the only vague assertions that she has made so far fail — as a matter of law — to do so.

(7) capitano made the following comment | Jul 8, 2005 8:29:08 AM | Permalink

I recommend the C-SPAN segment featuring Victoria Toensing (video available here) -- scroll forward to about 1:24:00 for the meat of the discussion.

She explains the issues from her perspective:

1. as the author of the 1982 Intelligence Identities Protection Act,

2. as a serious Washington insider on legal issues, and

3. as a prosecutor and defender of major Washington players in similar situations.

It's good stuff for lawyers and non-lawyers and if you want some hints about what is going on behind the scenes, she's the "go to" gal, debunking myths and offering her own perspective on why Miller is wrong (while praising her willingness to go to jail for her "principles").

Best line: "What's to prevent a dishonest prosecutor from leaking false information to a reporter about a political opponent knowing he would never be outed? I have seen this happen."

(8) cubesnviews made the following comment | Jul 8, 2005 8:31:29 AM | Permalink

If Miller submitted the determination of whether or not her source waived confidentiality for review, she would have to reveal her source because, as you pointed out, there likely is some kind of written waiver in the form of an employment agreement. Miller obviously does not think "voluntary" is synonymous with "not coerced." I support your argument that the determination should be made in camera, but I think the threshold needs tinkering. The waiver would have to be unequivocal and current. I don't think an employment agreement signed years ago should suffice.

Also, you didn't address the more central question that is inciting all the passion - what is the role of a journalist in a democracy? You've pointed to the concerns over journalists abusing the privilege, but aren't you concerned about the government being able to insulate itself against any kind of meaningful investigation? Imagine a scenario in which a potential source is chilled from "leaking" legitimately newsworthy information - information that would advance our ability to assess the job the government is doing. Do you feel you've given sufficient importance to that consideration?

(9) Ann Althouse made the following comment | Jul 8, 2005 8:52:12 AM | Permalink

As I wrote back in my comments:

I don't have the time at this point to engage with all the arguments that are being raised here, but I do want to emphasize that I've never taken a position -- in all of this! -- on whether Judith Miller made the right call that this was a matter that justified civil disobedience or whether if there were a federal statutory reporter's privilege it ought to cover the situation in Miller's case. I've been speaking at a fairly high level of abstraction about the respectability of civil disobedience and the need for a federal statute. Beldar is asking questions on a different level, which I haven't taken a position on. I would have to study the problem in much more depth to want to respond to all of this.

Please look carefully at what I have said and don't simply assume -- maybe because you feel passionate about something -- that I am on the other side.

(10) Xrlq made the following comment | Jul 8, 2005 9:08:32 AM | Permalink

Again, however, I respectfully disagree. Nobody goes to jail for refusal to waive a legitimate privilege; they go to jail when a privilege has been determined not to exist, a lawful order compelling disclosure has been entered, and that order has been defied. When a privilege claim has been rejected, the claimant (here, the confidential source) may certainly be influenced to give permission for the secret information to be made public by the reporter, lawyer, priest, spouse, psychotherapist, etc., based on the claimant's desire not to see that person jailed for his/her defiance of the law for the ostensible protection of the source. But again, that does not mean the waiver or release is legally invalid.

I'm not arguing that it's legally invalid. All I'm saying is that to the extent Miller honestly believes there should be a journalistic privilege akin to attorney-client, doctor-patient, etc., and is willing to go the route of civil disobedience to back it up, she shouldn't be faulted for "refusing to take yes for an answer" when that "yes" comes under circumstances that would not constitute valid waivers if the privilege did exist.

To argue otherwise is to argue, in effect, that civil disobedience is wrong because it violates the law. Well, sure, but isn't that the point?

(11) ed made the following comment | Jul 8, 2005 10:31:01 AM | Permalink

Hmmm.

Refusing to obey the law is not automatically "civil disobedience". There are plenty of people who believe that federal personal income tax is unconstitutional, and don't pay their taxes. When they're brought in for trial it's not for "civil disobedience". It's for breaking the law.

There is no federal law that recognizes this "right" Miller is espousing. And I would frankly oppose any such ridiculous law. At no point has journalism, or journalist, proven that they wouldn't abuse such protections abominably.

Look at how journalists abuse their current protections from civil litigation over libel or slander? I believe it is Sullivan vs. New York Times that requires the absolute proof of malice, a hurdle that is very difficult to cross.

(12) Boger made the following comment | Jul 8, 2005 11:52:52 AM | Permalink

The point of Beldar's blog is not an act of disobedience, in general or Miller's. It is the particular motivation in this particular case. Is it based on pure principle, or are other factors involved? This could be tested if Miller's employer completely withdrew its support for her course of action, as in: Dear Judy, We are a party in this matter. We (employer and employee) have had our day in court. We don't like the result either and intend to pursue other remedies. In the meantime you are acting as our agent, in essence, and we want you to comply with the Court order. If you don't you are on your own and we will box up your personal items and forward them to you.

I am also a little uncomfortable with this waiver business, but being a non-lawyer I may not grasp the legalities. I was under the impression that if the source's information relates to a crime, the source doesn't have a legal privilege to waive, and a professional journalist well knows this. Thus I would find it hard to credit Miller on this aspect. Even less so if she has received a more direct and personal release from her source than the obligatory employment form clause.

The NYT should express their druthers (ala Time to Cooper)to Ms. Miller in no uncertain terms. It would be win, win. Not only would it be the responsible thing to do, both in terms of the Miller case and the Plame case (a serious crime was ostensibly committed), but it would feel good to get their hooks into Bush and Rove. Please don't tell me "principle" is preventing them.

(13) The Drill SGT made the following comment | Jul 8, 2005 1:49:50 PM | Permalink

David Ignatius had a good article on the topic in today's WaPo. I enjoyed the article, particularly the linkage to other privilege types (e.g. Doctor, Lawyer, Priest). I do think he missed one additional thought or conclusion however. Reading the Para below and recalling what I know about the Wilson leak facts, I'm struck by the seemingly direct comparison to attorney-client. as a Thought piece try this:

The privilege can be breached if the REPORTER learns his SOURCE is planning to commit a crime (OUTING a SPY) or if the REPORTER is himself participating in a crime or fraud. (OBSTRUCTION OF JUSTICE)

I fail to see how Miller can expect more privilege than attorney-client.

one para said:

We should begin by agreeing that the reporter-source privilege isn't absolute -- any more than attorney-client privilege or doctor-patient privilege. The American Bar Association's code of ethics recognizes, for example, that the confidentiality of conversations between an attorney and client is limited by what's known as the "crime fraud exception." The privilege can be breached if the attorney learns his client is planning to commit a crime or if the attorney is himself participating in a crime or fraud.

Beldar, can you speak on the crime fraud exception?

(14) ed made the following comment | Jul 8, 2005 1:54:07 PM | Permalink

Hmmm.

Frankly I think of this along the lines of an NDA, Non-Disclosure Agreement. Essentially an NDA can require you to do a lot of things, but it cannot require you to not report crimes or not cooperate with legal authorities if required to do so. In no way does the existence of an NDA empower you to avoid such cooperation.

So if Miller had an NDA, as a theorectical exercise only, with her source, then the NDA is irrelevant since that agreement cannot prevent or preclude Miller from cooperating with the prosecutor.

Really there's nothing for Miller to stand on. Frankly if I were the judge I'd simply continue the incarceration even after the the inquiry has ended on the grounds of contempt of court. Of course I'm not a lawyer, nor a judge which is good news for Miller, and I have little desire to become one. But this nonsense over non-existant privleges for journalists needs to have a stake put in it's heart and buried permanently.

(15) capitano made the following comment | Jul 8, 2005 2:16:03 PM | Permalink

I am also a little uncomfortable with this waiver business, but being a non-lawyer I may not grasp the legalities. I was under the impression that if the source's information relates to a crime, the source doesn't have a legal privilege to waive, and a professional journalist well knows this. Thus I would find it hard to credit Miller on this aspect. Even less so if she has received a more direct and personal release from her source than the obligatory employment form clause.

Since there is no Federal journalist privilege, it's difficult to figure out exactly the limits that its proponents would acknowledge. I don't get the impression Judith Miller would accept ANY waiver from her source as sufficient to remove the barrier to her testimony. I haven't heard her supporters say she attempted to verify that the source was coerced. If she's going to stand mute on principle, shouldn't she have some affirmative duty to do so inasmuch as the judge concluded there was in fact a waiver?

No, I think that from listening to her supporters' arguments, they want an absolute privilege of confidentiality and have said as much in responding to the fact that this case is not about a whistleblower but a retaliator who should not be protected. They argue that the greater good requires confidentiality in all cases in order to insure that the true whistleblowers are protected, even if it means protecting bad guys.

I think it's a scam to get their phones ringing with scandal tips. As Victoria Toensing said (see my comment upthread), what's to keep a dishonest prosecutor from slandering his political opponent to a reporter and then hiding behind the journalist privilege?

(16) Beldar made the following comment | Jul 8, 2005 2:30:04 PM | Permalink

I re-post here the comment that I left on Prof. Althouse's own blog, in reply to the comment she left both there and here:

Prof. Althouse, thank you very much for the civil and articulate reply here (and as reposted in the comments on my own blog).

Re-reading my last comment here, I see that it may appear that I was more or less demanding that you (as opposed to your commenter bos0x) answer the questions I posed. I apologize for that; I don't think a blogger is obliged to respond to questions posed by readers in his/her comments. (For that matter, bos0x isn't obliged either.)

I also very much appreciate your clarification. I drew the inference from your original post — mostly from the "dignity" and "grand gesture" terms that you applied specifically to Ms. Miller — that you were indeed taking at least an implicit position on whether her disobedience to Judge Hogan's order was justified on grounds that the law which prompted that order is unjust. And you're absolutely right that I have very strong views about that, and a very strong aversion to the sort of mushy invocations of the First Amendment and need for a watchdog press that I believe Ms. Miller and the NYT (as for example in this editorial) are peddling. If other readers also drew the same inference about the scope of your views that I did, your clarification ought to be accepted by us all as setting the record straight about your views (or non-views). Again, my thanks, and my compliments.

My thanks to the other commenters here as well. I'll try to respond to at least some of the points and questions they've raised shortly.

(17) Beldar made the following comment | Jul 8, 2005 4:49:42 PM | Permalink

Drill Sgt, thanks very much for the link to David Ignatius' WaPo op-ed. I agree with most of the points he's made, and indeed have argued many of them myself in my prior posts on this controversy. His description of the "crime/fraud" exception to the attorney-client privilege is concise and correct, but the subject is a huge and complicated one. My short take: I can see legitimate arguments that its rationale doesn't quite fit the "valiant whistleblower/noble news reporter" paradigm, though, because outside the courtroom, there is no ritualized adversary system of competing advocates who (in theory) have approximately equal resources and are bound by the same system of ethics and rules of evidence and procedure. The crime/fraud exception to attorney-client privilege is, then, useful for making the point that even the attorney-client privilege isn't absolute; but I don't think it's terribly persuasive to simply argue that "lawyers can't promise to conceal a client's plan to commit a crime nor cooperate in it, therefore a reporter ought not be able to either."

Xlrq, thanks for your clarification and excellent follow-up question, in which you wrote:

[T]o the extent Miller honestly believes there should be a journalistic privilege akin to attorney-client, doctor-patient, etc., and is willing to go the route of civil disobedience to back it up, she shouldn't be faulted for "refusing to take yes for an answer" when that "yes" comes under circumstances that would not constitute valid waivers if the privilege did exist.

To argue otherwise is to argue, in effect, that civil disobedience is wrong because it violates the law. Well, sure, but isn't that the point?

Let's use a hypothetical: Suppose a journalist is subpoenaed to give testimony and produce documents about a confidential source in state-court grand jury proceeding in a state that has a "typical" shield law. Assume that indeed, the shield law does apply, and that the prosecution hasn't met whatever the statutory threshold is set at for overcoming the qualified privilege. The same prosecutor presents a signed, notarized waiver signed by the source that purports to release this and any other reporter from any continuing obligation to keep confidential the source's identity or anything he discussed with the reporter(s). The source is otherwise silent. But in response to the waiver, the reporter (acting in the interests of both the silent, cowed source and of society) pleads and proves that as part of the FBI's investigation of an unrelated federal crime, FBI agents put a loaded gun to the source's head and started the Russian Roulette game to compel him to sign a blanket waiver. The state prosecutor says, "Hey, I had nothing to do with that, the feds did that on their own, they just handed me a duplicate original of the waiver after they'd obtained it"; assume that's true too (so we don't have any prosecutorial misconduct that could be used to quash the state-court grand jury proceedings). On these hypothetical facts, I'd agree that the waiver is invalid, and can't be used as a basis for the state court to conclude that the qualified privilege has been waived, and that the reporter can't be jailed for continuing to claim the shield law's protection and refusing to testify. Assume further, however, that the state trial judge and the state appellate judges are morons, and they nonetheless order the reporter to be jailed, and no further appeals are available. Under those circumstances, I'd agree that the reporter, in holding his wrists out for the cuffs but still refusing to testify, is engaging in justified civil disobedience. The injustice would be in the state courts' improper recognition of the invalid waiver, though — not because the reporter thinks the privilege laws ought to be changed or expanded.

Miller's situation is unlike this hypothetical in both key respects. (a) If she thinks there's a valid privilege that shields her, she's wrong; if she thinks federal law ought to have something like the qualified privileges created by the state shield laws, those wouldn't help her; and if she thinks that justice requires that reporters be granted an absolute privilege, our courts and legislatures, state and federal, so far have unanimously disagreed with her concept of what justice requires. (b) There's no hint, no credible speculation, and certainly no proof that Miller's source has been subjected to the level of coercion that state and federal law require to vitiate that source's waiver. And again, if Miller believes that "justice requires" that lesser forms of coercion (e.g., threat of dismissal from employment) become adequate grounds to make the waiver invalid, that's another concept of "justice" that's at odds with the rest of society.

Bottom line: I don't think Miller can show that there's anything the rest of us can agree is "unjust" about either the lack of an absolute privilege or the lack of a super-permissive standard for invalidating waivers.

cubesnviews, you wrote:

You've pointed to the concerns over journalists abusing the privilege, but aren't you concerned about the government being able to insulate itself against any kind of meaningful investigation? Imagine a scenario in which a potential source is chilled from "leaking" legitimately newsworthy information - information that would advance our ability to assess the job the government is doing. Do you feel you've given sufficient importance to that consideration?

You're correct that I haven't yet addressed that question in this post or these comments. I am not unrelentingly hostile to the notion of courts giving some sort of deference in order to promote the values you (and the MSM) assert. But defining the ambit of any qualified privilege is awfully problematic, just from a definitional standpoint. The hodge-podge of state shield laws, plus the existing DoJ guidelines that give similar quasi-statutory protection in the federal courts, seem to me to strike an acceptable balance for now between the public interest in efficient investigation and prosecution of crimes and the public interest in encouraging exposure of government corruption by indirectly protecting whistleblowers who go to the "press" (very broadly defined).

But I remain very, very skeptical about the shield laws, and I suspect that over time, the confusion engendered by the definitional problems and the potentials for abuse may come to overbalance the rather marginal benefits that arguably flow from a qualified privilege. No American reporter has ever been able to truthfully say to a potential confidential source, "Don't worry, I'll protect you, and the law will definitely back me up on that." Nevertheless, there have been celebrated confidential sources and genuine whistleblowers who've spoken out anyway. I'm not yet leading the charge to see the existing state shield laws repealed, but were I either a state or federal legislator, I haven't seen one that I'd be persuaded to vote for yet.

And Ms. Miller's situation, just as a data point, certainly doesn't push me in that direction either. These are lousy facts for any proponent of "journalistic freedom" to become passionate about.

On your other point — "The waiver would have to be unequivocal and current. I don't think an employment agreement signed years ago should suffice." — I respectfully disagree. There's nothing intrinsically pernicious about giving consent prospectively. "To get this job, I must commit now that if a situation arises in which I decide to become a whistleblower, I can't count on a reporter being kept free from legal compulsion to reveal my identity." Why shouldn't someone be able to make that choice in advance, if it's a fully informed one, and bound by it later? And keep in mind that genuine whistleblowers have a variety of other legal protections under state and federal law, apart from reporter shield laws (e.g., common-law exceptions to the "employment at will" doctrine that prohibit discharging workers for refusal to participate in criminal activities). In other words, protecting whistleblowers from being "outed" is not the only sort of potential whistleblower protection. There are lots of different knobs that can be adjusted to strike the right balance, if one's inclined to make that effort. Turning up the "reporter privilege" dial or the "waiver voluntariness" dial to eleven aren't the only, or necessarily the best, ways to promote the values for which you argue.

(18) Xrlq made the following comment | Jul 8, 2005 9:57:31 PM | Permalink

Miller's situation is unlike this hypothetical in both key respects. (a) If she thinks there's a valid privilege that shields her, she's wrong; if she thinks federal law ought to have something like the qualified privileges created by the state shield laws, those wouldn't help her; and if she thinks that justice requires that reporters be granted an absolute privilege, our courts and legislatures, state and federal, so far have unanimously disagreed with her concept of what justice requires.

The first and last "ifs" can be disposed of easily, so let's focus on the middle one. If she is going the civil disobedience route, she's effectively conceding the law is not on her side, but taking a bullet for the position that there should be a qualified privilege, which all involved acknowledge does not exist at the federal level. Why, exactly, would that qualified privilege, if it existed, not help her?

There's no hint, no credible speculation, and certainly no proof that Miller's source has been subjected to the level of coercion that state and federal law require to vitiate that source's waiver. And again, if Miller believes that "justice requires" that lesser forms of coercion (e.g., threat of dismissal from employment) become adequate grounds to make the waiver invalid, that's another concept of "justice" that's at odds with the rest of society.

I disagree. If your client "voluntarily" waived privilege because his employer would fire him if he didn't, or worse, because he didn't want you to go to prison over it (assume you're in the custody of some rogue country that doesn't recognize the attorney-client privilege), would you accept that as a "voluntary" waiver of privilege?

Bear in mind that I share your disdain for journalists who think they are above the law, claim a privilege that does not exist, and laughably analogize their relationships with their sources to those of attorneys and clients, doctors and patients, etc. But when it comes to evaluating the legitimacy of a "civil disobedience" act, we have to assume for argument's sake that the underlying cause is just, as its adherents no doubt believe. You can't attack Gandhi's methods by arguing the merits of British occupation.

(19) Beldar made the following comment | Jul 8, 2005 11:07:42 PM | Permalink

Xrlq, you honor me by your patience with my overlong and inadequate explanations, but I'll try again, my friend.

The answer to your question of "Why, exactly, would that qualified privilege, if it existed, not help her?" is that all three DC Circuit judges agreed that even if they assumed the existence of a qualified privilege (like that created by the state shield laws), the Special Prosecutor's showing of his compliance with the DoJ regulations here was sufficient to overcome it. (Basically because he had demonstrated, through in camera filings of grand jury evidence about which Miller and the NYT have bitterly complained, that he had particularized need for this information and that he'd exhausted other available sources to get it.) The NYT's Bill Keller concedes this point in an exchange during the PBS NewsHour program that I didn't quote above, but reproduce here:

STEVE CHAPMAN: What I'd like to point out here is that under the sort of — under the sort of shield laws that apply in most states, if there were such a law at the federal level, it would not excuse Miller from testifying because what's been established by the prosecutor in court in this case is that the information he's seeking is absolutely critic to the investigation and that there's no other way to get it. And under those circumstances, in almost every state, she would be compelled to testify.

TERENCE SMITH: Now, Bill Keller, —

BILL KELLER: I'm not arguing with that. That was exactly my point.

On your privilege waiver point: Yes, absolutely, if my client waives a privilege to avoid being fired, I'd honor that waiver even if I hated the employer for putting my client to that decision. Yes, if I'm in a despotic country that doesn't recognize attorney-client privilege, and to keep me out of prison my client agrees, however reluctantly, to waive privilege to keep me out of prison there, that would be a valid waiver of privilege under the law. All of these privileges belong to the principal (client/source), not the agent (attorney/reporter). Yes, the public has broad interests that are promoted by the creation and maintenance of such privileges in general, but in any individual case, the privilege is for the benefit of the principal. And being fired, or seeing your friend and colleague imprisoned by a despot, isn't enough under the law to invalidate the principal's choices.

"I'll get fired!" or "It will bankrupt me!" or "My mother will keel over from grief and have a stroke!" just aren't adequate. Accepting them turns the law into something essentially standardless — it's not the business of judges and courts to decide whether something's "really bad" or not; and if that is the standard, every commitment and every decision becomes subject to endless argument and indeed, those arguments are endlessly encouraged. "Loopholes" like "duress" or "involuntariness" are kept deliberately small lest they swallow the rules they're exceptions to.

A quick personal (nearly literal) war story: In twenty-five years of handling contract disputes, I've seen a duress defense succeed exactly once. I asserted it on behalf of a corporate CEO who was negotiating a contract in Indonesia that some local heavy hitters (third-party beneficiaries of the proposed contract) very much wanted to see him sign. He refused, tried to return to the U.S., and was prohibited by armed border guards (acting at the behest of those heavy hitters) from doing so; they told him in no uncertain terms that unless he signed the contract, he'd never see U.S. soil again. So he signed, and then escaped the country by bribing a small-town fisherman to take him to Singapore while covered in dead fish. Thereupon the company on the other side of the contract sought a declaratory judgment that it was enforceable, and we defended on the basis of duress. I had the goods, the real deal — literal loaded guns that had been pointed at my client's head — and the other side quite properly and wisely gave up on the brink of trial because they could see that I had the very rare winning duress defense. But I cannot count on all my and my childrens' and my friends' and my colleagues' fingers and toes the number of clients who've said to me, "Can't I get out of that 'cause so-and-so 'made' me do it?" The answer is just about always "No, you can't."

Likewise, there are hundreds and hundreds of appellate decisions rejecting habeas or direct appeal challenges to guilty pleas on grounds that threats of prosecution and imprisonment don't make those pleas involuntary. The relatively few successful challenges to plea voluntariness are those in which the plea decision wasn't fully informed; the whole guilty plea colloquy required under the federal rules and tracked by most state courts is designed to create a record to conclusively ensure that the pleas have been made after the defendant has been advised of all the consequences. There are damn few cases in which, for example, police torture has been the basis for striking a guilty plea as involuntary. Bad (but lawful) consequences, fully understood and accepted in lieu of worse consequences, just aren't enough. In your hypos, my client didn't have to take that job, and I didn't have to wander into that despotic country.

You also write that

when it comes to evaluating the legitimacy of a "civil disobedience" act, we have to assume for argument's sake that the underlying cause is just, as its adherents no doubt believe.

No, we don't have to assume that. To return to my argument in Prof. Althouse's comments, Timothy McVeigh really, really believed that he was engaging in an act of civil disobedience when he lay down on the executioner's table without trying to claw the guards' eyes out, and he really, really believed that his actions were justified and the government prosecution of him was unjust. He was psychotic (but not criminally insane), and I refuse to impliedly endorse or justify his position by saying, "Well, he was really, really sincere, therefore this was noble civil disobedience." I'm not saying Judith Miller is psychotic. But I am saying that under the existing law regarding privileges and waivers, she's not being treated unjustly, and most people don't agree that the existing laws are unjust either because they lack an absolute reporter's privilege (the only kind that would help her) or because they accept waivers as valid unless there is really extraordinary personal compulsion (or lack of informed consent) involved.

(20) ed made the following comment | Jul 9, 2005 11:26:29 PM | Permalink

Hmmm.

Here's another point that should be considered. Would reporters shielding their sources be detrimental to the public good? Isn't the entire basis of having a shield law in the first place the assertion that such a shield law is in the public interest?

But is it really?

Deep Throat is a perfect example. This person was shielded for decades, far longer than necessary. If we had learned the identity of this person, would we have accepted it uncritically considering how biased this source was? Deep Throat was acting in his own interests, exemplified by the outright manipulations and deceit practiced by him. And yet Woodward and Bernstein protected his identity long after any possible harm from revealing it.

How is it in the public interest for a source to remain hidden, including the source's hidden motivations, long after any possibility of harm to that source?

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