Reporters' privilege and the public's dilemma

by Christy Hardin Smith

Frontline has a new documentary series, entitled "News War," that will be airing beginning the week of Feburary 13, 2007, tackling the modern media. There will be a number of issues addressed in the series, including reporter privilege, national security leaks and the modern business model for newsrooms today. I've had an opportunity to view some clips from the series over the past few days and I have to say, given the fact that Judy Miller took the stand today in the Libby trial, this discussion of media boundaries and futures could not be more timely and useful.

One of the issues that Frontline is tackling is that of reporter privilege, or the ability for a reporter to provide cover for a source with regard to a leak or whistleblower action, among other factual revelations, when that source divulges information in confidence to the reporter. The Libby case has brought this issue to the fore -- not, however, because there was a need to protect a confidential source by reporters in the case but, in a bizarre twist, because the journalists to whom the secrets of Valerie Plame Wilson's work identity at the CIA were divulged were, in effect, being used as mechanisms to disseminate classified national security information for political payback purposes -- actions which led to a substantial criminal investigation and proceedings before a federal grand jury and, currently, a jury in a federal criminal trial.

In this particular case, then, the question is not one of reporter privilege but, rather, a question of reporters as tools for a criminal action disguised as political payback for a critic of Vice President Cheney and the Bush Administration' Iraq policies. Not exactly the stuff of which martyrs are made, is it? Especially not when the folks trying to dine out on the martyr's bill of fare and two martini lunch menu were, in fact, willing carriers. (See The Miller's Tale Part I, Part II, and Part III for more.)

And yet Judy Miller has been trying to do just that ever since her ill-informed trip down orange jumpsuit lane saw her stuck in the hoosgow, protecting Scooter with everything she had because...what, exactly? Since the "reporter's privilege" law she has so willingly argued for since her release would not have applied to her situation.

Allow me a moment to quote Jay Rosen:

My question for Judy: Why is it that as you travel the country speaking out for a federal shield law--before journalism groups, legal societies, on TV, and the Congress--you invariably fail to mention what your champion (then) Bill Keller understood: the shield law would not have protected you because of the weird facts in this case? It certainly matters to how effective you can be in making a case to the nation for the shield law, I said. Yet you leave it out. And your remarks today were a perfect example....

I've asked a lot of people with knowledge of Washington, and of this bill. I haven't found one who thinks there can be a vote on a federal shield law without an exception in it for revealing the identity of a covert agent. A case in which that happened is not going to be a covered case; and anyone with political sense knows it.

And further, to quote Professor Geoffrey Stone, formerly on the board of the ACLU:

In the Plame case, we have a relatively unusual circumstance where the source is essentially using the press in an effort to commit a federal crime...no version of a reporter-source privilege in my view or my judgment would cover the particulars of this situation.

So, let's see: being used as a tool with which a crime may be committed? Not covered by shield or privilege law -- and that is true not only for journalists, should this law pass Congressional muster, but is also already true for spousal privilege, doctor-patient privilege, attorney-client privilege, and priest-penitent privlege.

This does not, however, begin to touch the serious discussion that does need to be had regarding whistleblowers in an age where Congressional oversight and governmental and judicial accountability have been sorely lacking. Whistleblowers have begun using the press as a means to expose governmental secrets to public scrutiny and sunshine, and to force debate on these policies out into the open public square -- but there have been cases where such public disclosure has been arguably more harmful than helpful the past few years.

But how does one tell the difference between a true whistleblower situation -- a leak for the greater public good, revealing the bad actions of a governmental entity to the sunshine of public scrutiny -- from a leak designed for payback or other less wholesome purposes? One person's good result is another person's nasty CYA, on so many levels, so how does one truly ascertain the purpose and intent of the leaker, or the journalist who is that person's secret keeper?

And therein we find the public's dilemma.

A free press was recognized by the Founders of this nation of ours as essential to the protection of liberty. It was, after all, a free hand with a printing press that brought us Thomas Paine's pamphlets. And the Federalist and Anti-Federalist Papers, among many, many others. As Thomas Jefferson wrote in 1787 regarding the necessity of maintaining a free press:

The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.

But with that freedom comes an equal responsibility to uphold the trust that the public and the government has placed in the press to dig for the truth, to report fairly and honestly, but also responsibly.

Judy Miller's sordid role in the Libby saga -- her backstory in terms of her access and use of information from the White House Iraq Group and from Ahmed Chalabi, among so many other sources, deserves some study and an enormous amount of public scrutiny. If for no other reason than as a cautionary tale for so many other journalists who might follow her down the path from investigative reporter to shill with an agenda doing the bidding of governmental manipulators and allies. (For more on this, take a peek at emptywheel's excellent series on What Judy Did As An Embed Part I, Part II and Part III.)

The Frontline documentary preview website has a clip of an interview that was done with John McLaughlin, the former number two man under George Tenet at the CIA, regarding the public leaking of national security information to the press. One of the stories that he talks about was the revelation of the NSA domestic wiretapping, on which we have done a lot of reporting since that story hit the NYTimes last December.

With that single story, you have the dichotomy that has to be balanced in the whistleblower/public scrutiny dilemma: the public's right to know about potentially criminal actions on the part of the government, wherein the nation's laws and the intent thereof are breached, deliberately or otherwise, so that a remedy may be imposed, balanced against the potential harm that such disclosure may do to the greater national security or other governmental agency or structure by the release of such information for public consumption.

These are not easy questions, nor should they be. The debate regarding these questions ought to be robust, and public to the extent that is possible, and fully engaged on all sides as well. This should include not just the public and the government, but the members of the press on whom the public depends for telling the stories -- the whole stories -- of what is being done in the public's name.

In so many ways, the future of the press in this nation lies in the hands of those who control the press themselves: the large corporate conglomerates who have made profit margin the controlling interest above and beyond serving the public mission, a shift which has led to the rise of "citizen journalism" in the form of blogs and other independent media groups. Corporate-owned media is already being forced to adapt its coverage and tone in order to compete, but the results of these changes will take time to sift out.

In the meantime, today in a courtroom in Washington, D.C., Judy Miller took the witness stand, raised her hand and was sworn under oath to tell the truth, the whole truth, and nothing but the truth. The case is a narrowly drawn indictment against one Scooter Libby -- but the implications of the testimony already given in this trial will have far-reaching consequences for the media, and for the greater public perceptions of the information they have, until now, not questioned nearly enough.

The White House spin machinations have been exposed through the testimony of press flacks for the Vice President and President. The complicity of the media in granting anonymity in exchange for continued access, in granting control over message in exchange for not having to dig too hard for a quote...it is all likely to be laid bare by Judy Miller in some form.

I, for one, cannot think of a better person to be sitting on the hot seat and answering questions about her practices and the cover she may have provided for dark deeds and whispers from Dick Cheney's office and from all of his many neocon cronies. And, to be frank, I hope that this is only one of many more occasions that we will see Ms. Miller raising her hand to be sworn under oath to give testimony. Because she certainly has a lot to answer for in her shoddy, spoon-fed reporting the last few years. As do the public officials who used her to plant those stories in the first place.

article originally published at http://www.huffingtonpost.com/christy-hardin-smith/the-publics-dilemma_b_40033.h....

The media's job is to interest the public in the public interest. -John Dewey