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Name: Antony Loewenstein
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Thursday, July 07, 2005

Jail time

The New York Times' Judith Miller has been ordered to jail for refusing to reveal confidential sources. Hyperbole spewed forth by all concerned:

Miller: "If journalists cannot be trusted to guarantee confidentiality, then journalists cannot function and there cannot be a free press. The right of civil disobedience is based on personal conscience, it is fundamental to our system and it is honoured throughout our history."

Bill Keller, executive editor of The Times: "Judy Miller made a commitment to her source and she's standing by it. This is a chilling conclusion to an utterly confounding case."

Arthur Sulzberger Jr., the publisher of The New York Times: "Judy has chosen such an act in honouring her promise of confidentiality to her sources. She believes, as do we, that the free flow of information is critical to an informed citizenry."

The New York Times article on the development contains this telling paragraph: "The case highlights a collision of the press's right to protect its sources, the government's ability to investigate a crime and even the Bush administration's justification for going to war in Iraq."

The paper is being predictably coy. It was Judith Miller who channelled bogus intelligence before the war, provided by fraudster Ahmed Chalabi, and contributed to an atmosphere of inevitability.

Rosa Brooks writes in the LA Times that Miller is no heroine. "Should Miller have refused to offer anonymity to all those "high-level" sources who sold us a bill of goods on Iraq?" she asks. "Yes."

Brooks writes: "It's possible (though not likely) that Miller is covering for a genuine whistle-blower who fears retaliation for fingering, gee, Karl Rove, for instance, as the real source of the leak. But I have another theory. Miller's no fool; she understood the lesson of the Martha Stewart case: When you find yourself covered with mud, there's nothing like a brief stint in a minimum-security prison to restore your old luster."

It pains me to defend or support Miller. Her reputation is tarnished beyond belief after the Iraq intelligence debacle. Her title should be changed from journalist to propagandist. In this case, however, the court's ruling is indeed incorrect and civil disobedience appears the most principled stand.

Let's pray Miller doesn't become a martyr.


Anonymous Anonymous said...

Why on earth do you think the jailing verdict is incorrect. Check out for University of Chicago law professor Geoffery Stone’s explanation.

i copied this from TPMcafe,, as it sums up pretty well:

There are a lot of people like the person above who are normally strong advocates of journalistic shield protections, but who find themselves unable to feel comfortable with Miller and Cooper in this, and can't quite put their finger on why.
I can tell you why (and it's not just because "Bush sucks").
It's because the conceptual separation between the crime and the communication about the crime does not exist in this case. In this case, the communication is the crime. The reporters in this case are not passive listeners to the story of the commission of a crime. They are participants (albeit passive, we presume) in the commission of it.
Let me give you an example:
Source tells reporter, "The mayor hired me to rob a liquor store last week because he wants to intimidate the owner into leaving." This reporter learns of the commission of a crime from the guilty party. He/she is later questioned in connection with either the robbery or the mayoral scandal and refuses to reveal the source. Good reporter, yes?
Look at the differences between these two situations. Everyone and his brother has already pointed out the "whistleblower" difference. The source is blowing the whistle on corruption, and the reporter needs to protect the source so that corruption in gov't can be rooted out. In the Plame situation, that's clearly not the case.
But there's an even more fundamental difference at work here: the Plame source wasn't communicating to a reporter about a crime. The Plame source was committing a crime by communicating to a reporter. That is an essential, significant difference. The act of communication itself was a crime.
Shielding the source in this case is damaging in two ways:
1. It is akin to having a murderer ask you to hold the victim's arms to keep them from flailing in self-defense. You may not be the murderer, but you are aiding and abetting. Think about it: who is the victim of this crime? The United States. By acting as passive participant in this crime (which is the act of communication itself), you make it impossible for the United States to defend itself from this crime, because...
2. You make it, ultimately, an unprosecutable crime. It would mean that the crime of this particular kind of communication would be absolutely and utterly unprosecutable if the other person involved happened to be a reporter. That's unacceptable.
The fact of the matter is, not even those accorded the greatest legal privacy protections -- clergy, attorneys, and mental health professionals -- are granted the right to be party to their clients' crimes. By committing a crime which takes the form of a piece of communication to a reporter, the source made the reporter a party to a crime, not just a person who happens to know about a crime.
Those of you who are feeling very squirmy about having to defend Miller and Cooper on this are feeling that way for a damn good reason.

Thursday, July 07, 2005 11:17:00 am  
Blogger Antony Loewenstein said...

Very interesting, thanks for that.
My mind isn't totally closed on this matter, though this perspective is one that I'm not seeing much of.
I still believe that protecting sources, and in this case, is essential. It's not everything as a journalist, in all cases, but vitally important.

Thursday, July 07, 2005 2:02:00 pm  

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