Sheridan: Con-Law

S.F. CHRONICLE REPORTERS TO BE JAILED

A federal judge has told two reporters from the Chron that, pending appeal, he plans to send them to jail for up to 18 months (the life of the grand jury) to force them to reveal who leaked secret grand jury information to them in the BALCO baseball steroid investigation featuring the testimony of S.F. Giant home-run hitter Barry Bonds, whose testimony before an earlier grand jury has given rise to a perjury investigation being conducted by the U.S. Attorneys office here.

Perhaps it's a bit too easy to say, "Bad government, going after good reporters like that, and shouldn't this be deemed a violation of the First Amendment's freedom of the press."  Absent a federal reporters shield law, the judge is required to order the reporters to divulge the information they've collected and jail them for contempt of a court order when they refuse.

The question is whether Congress should enact a shield law, as many states have.  The stakes may be different as between the states and the nation.  The nation may see its national security at stake, while it is hard to imagine the security of a state being threatened.  It's hard to see the nation's security at stake from what a reporter gathers, either, come to think of it, unless the reporter knows of the next impending Pearl Harbor or 9-11 attack and isn't reporting it but the government finds out anyway.

Government is concerned with protecting the secrecy, and integrity, of some of its more sensitive processes, such as grand jury investigations.  Thus it wants to be able to go after leakers, whistle-blowers, and the reporters who find out and report what these folks have said.

Some leakers and whistle-blowers perform a valuable public function.  Deep Throat, the informant who provided the key information to Washington Post reporters Bob Woodward and -- Bernstein that resulted in the Watergate scandal that forced the resignation of Pres. Richard M. "I'm not a crook" Nixon, was the No. 2 guy at the FBI, Mark Felt.  We wouldn't have wanted the reporters to go to jail there because we liked what the leaker was leaking.  He was burning a crooked administration that was subverting the nation.  He helped save the country.  So the rule:  good leaker, no jail for reporter.

But suppose the leaker, a government employee, is a crook himself?  Someone who is using the power of public office, and the secret government information available, to destroy enemies?  Innocent enemies?  For example a police detective "leaks" information that a suspect has confessed to the latest terrible crime that has everybody all upset.  Only it turns out the report is false and only designed to blacken the reputation of the subject.

Oh, no government employee would do that, you think.  But that was the belief held by many people in the Plamegate scandal, in which it was believed that the White House leaked the fact that Ambassador Wilson's wife, Valerie Plame, was a covert CIA employee, in order to punish Wilson for embarrassing Pres. George W. Bush by contradicting his excuse for invading Iraq by claiming that Saddam Hussein had been collecting yellow-cake, a precursor chemical (a uranium isotope) to make nuclear weapons.  It turns out that the leaker wasn't the White House but the State Department.  Or one of the leakers.  New York Times reporter Judith Miller went to jail for some 87 days before agreeing to reveal the leaker, after getting I. "Scooter" Libby's permission to reveal that he was her source.  The State Department's Richard Armitage seems to have been an even earlier leak.  Libby's leak seemed to have been a punitive leak that destroyed the career and relative safety of a CIA intelligence officer working to protect the country.  That was a bad leak.

Here the equation changes and the rule seems to want to be:  bad leaker, no reporters privilege.  Why?  Because why should reporters, and the law,  be allowed to protect evil lying leakers.

Should a reporters shield law protect only certain kinds of leakers, good, not bad?  Truthful, not lying?  Suppose the leak contains some of each?  It seems to me that a blanket rule is going to have some bad consequences that we can anticipate in advance.

Sen. Arlen Specter, Chairman of the Senate Justice Committee, says that he plans to introduce federal legislation to protect reporter from having to reveal sources soon.  I wonder how he proposes to address the problem of the lying leaker who harms his victim. 

The best real life example of this that I can think of is the Wen Ho Lee case, where the government scientist was suspected of revealing atomic secrets to China, only he wasn't.  He was prosecuted, jailed, and held in an isolation cell for months before the case fell apart.  In the meantime, some government investigator had leaked that he did all sorts of nefarious things indicating guilt, but these claims were shown to be lies. 

Mr. Lee sought to find out who the leaker was so he could sue him.  Didn't he have a right to receive compensation for the injury he'd suffered?  The government settled for a lot of money after Lee homed in on the leaker.

As to the question whether the distinction between protected and unprotected sources should be whether the leaked information is truthful or not, this characterization presents problems of its own, but perhaps not insurmountable problems.  In the Lee and Plame cases, and the information leaked was factually wrong.  The reporters were being used as tools by the leakers, just as the reporters were using the leakers as tools to write stories that turned out later to be false, although the reporters, presumably, weren't aware of this at first.  Suppose the reporters didn't much care whether the report was false, such as in a case where a really unpopular person was being condemned, such as an alleged Communist or child molester.  Or an Al Qaeda suspect. 

One of the problems is that you can't always tell truth from lies at the beginning of an investigation.  Yet the demand is to force the reporter to reveal information, whether true or false, before this can be told.

The government may hope to use the information to obtain more information so this can be determined. 

This is getting complicateder and complicateder.

We'll have to ponder it some more, won't we.

PROTECTING SPY-MOLESTERS

New York Times Reporter Judith Miller has been in jail for weeks now, for refusing to give up a source, as she, and the NYT would have you understand the issue.

Reporters would like to have their sources protected from disclosure by a legal privilege. Every state except Wyoming (!) has a statute providing at least some protection from prosecutors and their grand juries who want to peek into reporters' notes. But not the feds, and a federal judge, at the request of a federal prosecutor has placed Ms. Miller in durance vile, the stony lonesome, the slammer, jail.

Publishing companies are now trying to devise ways of not possessing secret information, such as by referring to sources in code so the publishers' email can't be so easily scanned for the names of likely suspects by prosecutors with subpoenas.  What they can't recognize can't be used against someone.  Publishers want their reporters to keep the sensitive stuff out of the central home computer.

When a reporter goes to jail for a principle, other reporters tend to treat him or her as something of a hero, pointing to the injustice of it all.  I've seen a few articles about Ms. Miller, and I hope she gets out soon, but she does hold the key to her jail cell in her mouth. 

All she has to do is to tell the prosecutor, Mr. Paul Fitzgerald, who it was who burned Valerie Plame. 

Ms. Plame is the wife of Joseph Wilson IV, America's former ambassador  to the starving African nation of Niger.  Wilson blew the whistle on the falsehood uttered by Pres. Bush, later admitted by the White House (Oops, sorry, bad sources), when the president told the world in a State of the Union Address that one of the reasons, the main reason, in fact, that we needed to invade Iraq, was because Saddam had bought yellowcake, uranium for nuclear bombs, aka Weapons of Mass Destruction or WMD, from that country.  Now it turns out that we invaded Iraq was because Saddam is evil.  Of course we supplied him with weapons to fight Iran, so he wasn't all THAT evil, way back when. 

Saddam might've been a bastard, but he was our bastard.  And he might have had something to do with 9-1l, although there's a lot more evidence that 15 of the 19 hijackers were Saudis, not Iraqis, trained in Afghanistan, which is why we invaded Afghanistan.  Saudis are our friends.  They're our gas pump.  Why is our oil under their sand?  So Riyadh gets a pass on this one.

When Wilson came back from Niger, where he'd checked with his sources and looked at documents in the government there, he told the world, in an Op-Ed piece in the times entitled "What I didn't find in Niger," that president Bush's claim that Saddam had arranged to buy uranium from Niger was, ahem, bogus.

A few days later Robert Novak, citing top administration sources, reported that the reason Wilson went to Niger was because the CIA, where his wife works as an undercover spy, mind you, and by the way her name is Valerie Plame, and you can find that out by looking up Wilson's name in Who's Who, so there, sent him there, so maybe you should take what he says with a grain of salt.

But there was a bigger message, that came across loud and clear. 

The big message was that if you cross the White House by making a liar out of the president after he goes to war based on the lie, bad things will happen to you or members of your family, because you should not point out that the president has egg on his face, even if it's there as plain as day.

"Ve haff vays," is the operative principle.

That's pretty scary.

Novak said a few days ago that so-and-so (revealing his source) over at CIA told him he shouldn't report that Wilson's wife was a CIA spy.  But the source didn't say that it could get her or someone else killed (she hasn't been), and didn't mention her name (because then HE'd be leaking confidential information). This source was reported this week along with this analysis.  Novak hasn't gone to jail.

Matthew Cooper of Newsweek got permission from his source to disclose his identity, and narrowly avoided jail.

Only Judith Miller has been jailed and the really funny thing is that she didn't even publish a story revealing anyone.

So, is she a martyr to a principle?

She must think, yes, to the principle of a free press.

She should win a medal, right?

Not so fast.

A society of her fellow journalists had voted to give her a free press award but then took it back after reconsideration and a vote of the full board.

Millers fellow journalists have some reservation about which principle is at stake here.  It's a bit kaleidoscopic and it depends on which aspect you raise up to the light and focus on.  Conlaw is often like that; first you see this and now you see that, which is why we cannot predict the outcome of cases very well.  You never know which points are going to muster at least five votes.

You can read here why the journalists' organization rescinded their award to Ms. Miller.

Ms. Miller, it seems, is viewed by some of her fellow reporters not so much as protecting a free press but as protecting an Ogre in the White House who was trying to send a message that anyone who makes an apparent liar out of the administration's chief client, the president, will suffer immediate and devastating retaliation, and this ought to discourage anyone else who dares to take on the president.

Ms. Miller, it seems, is shilling for a bad man, a White House spy-molester. 

A White House operative who will burn a government spy simply in order protect the Client-in-Chief is an evil person who deserves to be prosecuted, not protected from prosecutors, and this is what Ms. Cooper is doing, protecting a spy-molester, as viewed by other reporters whose sources remain subject to similar retaliation when they leak to them. 

Reporters without leakers are like leakerw without reporters.

Neither one of them can get out the word that the rest of us need-to-know if we want to know how our democracy is really working.

Making all this even more interesting is that the supposed Ogre is none other than Karl Rove, the president's friend, political adviser, and the architect of Pres. Bush's recent re-election victory.  After the election in 2004, Pres. Bush referred to Rove as "the Architect." 

He also refers to him as "Turd Blossom," the factual basis of which may now be apparent.

If I could make this stuff up I'd be in Hollywood.

On the continuation below is an excerpt f rom the article, consisting of a contribution by Anita Bartholomew, explaining her objection to giving Ms. Miller a journalism award. 

Ms. Bartholomew deserves a journalism award for clear, hard thinking, for providing a simple explanation to a very complex story line.

In your opinion, which is it? 

Is Judith Miller protecting a free press, or hiding an ogre?

As an aside, the word "ogre" is said to refer either to monsters from the underworld or fearsome invaders from Central Asia, a la the Tartars, today's Uighur people of Eastern China.

SOURCE SHIELD BILL IN SENATE

In light of the Valerie Plame - Karl Rove affair which has resulted in the jailing of NYT reporter Judith Miller and the almost jailing of Time Magazine's Matthew Cooper who was spared by a last minute waiver by his source, the Senate Judiciary Committee is conducting hearings on a bill, which if passed, will provide federal protection against being revealed for the sources of reporters.  C-SPAN is televising Wednesday's hearing.

Reporter Matthew Cooper, Floyd Abrams, Esq., Prof. Gerald Stone, Sen. Diane Feinstein (D-CA), William Safire (NYT) and others have all testified.

Sen. Diane Feinstein notes that California has a strong shield law.

Abrams notes that 49 of the 50 states (Wyoming the exception) and Wash. D.C. all have Shield laws protecting sources used by reporters to gather news, without which the public does not get to know, and what other sources do we have than to rely on anonymous sources leaking to a reporter?  See Watergate, Woodward and Bernstein, and Deep Throat (Mark Felt, former #2, FBI).

Sen. Russell Feingold argues that this bill is not to benefit the press, per se, but the public.

Dep. A-G Cromey, former U.S. Attorney, Southern District of N.Y. (NYC), has not appeared to testify or answer questions before the Committee, although he did submit written testimony opposing the bill on national security grounds, apparently.

Below is a link to the Bill  (SB 369 IS), which seeks a qualified privilege, not absolute, providing an (unspecified) exception for national security leaks, such as A-bomb secrets, military codes, and the like.  In fact, a (federal only?) court may order disclosure if the issue is significantly important to a legal issue coming up before a part of government having power to subpena or compel testimony.

What about matters of life and death or public safety?  Ex: A kidnaping in progress.

Sen. Charles Schumer, D-NY:  Says is sympathetic to the journalists, but notes "roadblocks."  Wants a bright line test other than gov't stamping 'secret' on everything.

Lee Levine, Esq. argues that 99% of leaks are of public benefit; 1% is not.  We're at risk of losing the 99 in order to get the one, he claims, that is, without a bill.

Sen. Arlen Spector asks why Mark Felt didn't go to Congress with his information.  My guess is that Felt had no confidence in the political leadership, not even the opposition to Nixon, so he forced the issue by going to the press, Woodward-Bernstein, reporters of the Washington Post.  Spector says Felt could have found someone he trusted in Congress.  Spector puts the question to Safire, who was a speech writer for Nixon at the time.  Safire responds that Felt may have felt reluctant because he might be asked about his own illegal wiretapping and black bag (burglary of political opponents of the administration); further that he supports what Felt did, regretting only that he went to the wrong newspaper (WPost instead of NYT).

Spector argues that there are places to go instead of the media if you are a disgruntled federal employee in possession of leak-worthy info about the wrongdoing of gov't officials.

Spector advocates criminal penalties for leaks, or refusals to reveal sources, that endanger lives.

Schumer wonders about Grand Jury leaks; bill would make reported leaks hard to prosecute.  Notes "hard cases (Cooper/Miller) make bad law."

Safire argues that reporters are not gov't agents; that forced waivers by gov't of employees to reporters are shams and snares; let the source say what he said or if he leaked, rather than putting the onus on
the reporter to say what the source allegedly said.

In reading the bill, note that while judges are given some discretion to compel disclosure of some journalistic assets, sources is not one of them.  So a reporter, under the bill as it stands, CAN tell a source that the reporter can protect his identity even against a court order or grand jury or congressional subpena and a charge of contempt.  The bill declares inadmissible the identity of the source or any information that would tend to identify the source (Paras. 3(a)(1), 4(b).

Here's the Bill, below:

KARL ROVE BURNED BY MATTHEW COOPER?

That's what Rove's lawyer is saying, according to the National Review Online, in the article, below:

BE A REPORTER, GO TO JAIL

By now we're used to seeing suicidal reporters going to jail for refusing to divulge sources.  With pride at upholding freedom of the press, and sorrow at losing their freedom, off to journalistic martyrdom they march, much as heretics burned at the stake in an "act of faith" (or auto da fe, as we used to say).  It's amazing what the authorities could get away with in those days if only they said the right words, like "heretic," and auto da fe.".  Today we just say "national security" and do the same thing.  We did, at least, until the Pentagon Papers and Watergate. 

Today we tend to recognize "national security" for what it is, lying politicians covering their backsides supported by admirals and generals who think free speech ("loose lips") sinks ships, which in World War II the could and no doubt did. 

The issue came up in Near v. Minnesota (1932), in an example by Chief Justice Charles Evans Hughes.  Troopships were the only example he could come up with where a prior restraint of the press might be warranted. 

Later, in the Pentagon Papers case, troopships became the watchword of the defenders of the First Amendment, Prof. Alexander Bickel and his former student, Floyd Abrams:  "Where's the troopship?"  See Floyd Abrams' new book Speaking Freely (Penguin, 2005).

There was no troopship in the Pentagon Papers, or if there was, it had already sailed and safely returned.  The troopship can be a figment of the imagination, unless, of course, there is a real troopship.  Then of course, if the sailing schedule is published, guess what happens next.  Right.  The schedule is changed, the route changed, or more protection added.  What if there's no more protection?  Then don't let it sail.  We don't use troopships any more.  That's WWII technology.  Today we use Hercules C-47s.  No one knows when they take off, and when they do, it's too late.

The reason reporters go to jail is a case called Branzburg v. Hayes (1972) in which reporters were held to have no privilege to refuse to divulge sources.

Now two reporters are knocking on the door to the Supreme Court seeking judicial review of Branzburg.

Seems to me that it's about time for the issue to be revisited, over thirty years, in light of the experience we've acquired with government and expression since then, especially in light of the internet.  The internet today is the equivalent of the neighbors talking over the back fence.  Government couldn't regulate that either.

Here's Adam Liptak of the NYT reporting on the reporters' last hope, that the Supreme Court door opens and welcomes both them and their product.

Why would I welcome that?

Because I don't trust my elected representatives to do the job of a reporter.

Without a reporter doing an honest, or even a dishonest job of news gathering, I'm at a loss.  I know nothing.  All I know I get from the news.  Yes, I have to sift through a lot of chaff to reach the wheat, but that's my job, my responsibility, and my contribution to myself and to anyone who reads these words.  Without reporters, I've gone blind and dumb.  I don't wany my truth-agents in jail.  I'll have no one left to dig up what I need to know.  I've lived too long to trust what those bureaucrats in Washington would like to spoon feed me. 

Why, he sputtered, some of 'em might even LIE to me!

 

April 19, 2005   Court Declines Case of Reporters in Leak Case   By ADAM LIPTAK     wo reporters facing up to 18 months in jail for refusing to testify about their sources lost another round in the courts today. The reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, now have only one appeal left, to the United States Supreme Court. But it is hardly certain that the justices will agree to hear the case or that the reporters will remain free even while that court considers how to proceed. Today's decision, by the full federal appeals court in Washington, declined to reconsider a unanimous decision of a three-judge panel of the court. The earlier decision, in February, required the reporters to testify about conversations they might have had with government officials concerning Valerie Plame, an undercover C.I.A. operative, whose identity was first disclosed by Robert Novak, the syndicated columnist. Seven judges participated in today's decision. One of them, David S. Tatel, published an explanatory concurrence; none noted a dissent. The reporters, who have remained free, now face what could be a fast-paced conclusion to the matter. Unless they can make a deal with the special prosecutor in the case, Patrick J. Fitzgerald, or persuade one of the courts involved to issue a stay, the usual procedural rules suggest that they may face jail as soon as a week from now, when the appeals court will issue its mandate and return jurisdiction in the case to the trial court. A spokesman for The New York Times Company, Toby Usnik, said in a statement, "We are disappointed with the court's decision and we will seek a stay in order to have sufficient time to seek U.S. Supreme Court review." The chief judge of the federal district court in Washington, Thomas F. Hogan, ordered the reporters jailed in October unless they agreed to testify, and he has given no indication that he has changed his mind. Mr. Fitzgerald has consistently urged the courts to take quick action, adding recently that his investigation is all but complete. In a speech in Montana last week, Judge Hogan suggested that he expected the Supreme Court to hear the case, according to reports in the local papers there. In his concurrence today, Judge Tatel, who also participated in the February decision, explained that the reporters have little to work with under existing law. A 1972 decision of the United States Supreme Court, Branzburg v. Hayes, requires the reporters to testify, Judge Tatel wrote. In that case, a five-justice majority of the Supreme Court ruled that reporters have no First Amendment protection when grand juries seek the journalists' sources. "Only the Supreme Court can limit or distinguish Branzburg," Judge Tatel wrote today. A second possible source for legal protection for reporters generally, the common law, was the subject of a three-way split in the February decision. But all three judges agreed that any protection that might exist was of no help to Ms. Miller and Mr. Cooper. Nor did Judge Tatel offer any apologies today for the eight blank pages that were part of his concurrence in February, presumably setting out the factual reasons why the reporters' testimony was needed. Lawyers involved in the case have speculated that the pages described Mr. Novak's mysterious role in the matter. "Telling one grand jury witness what another has said," Judge Tatel wrote, explaining why secrecy was needed, "not only risks tainting the later testimony (not to mention enabling perjury or collusion), but may also embarrass or even endanger witnesses, as well as tarnish the reputations of suspects whom the grand jury ultimately declines to indict."   Copyright 2005 The New York Times Company | Home | Privacy Policy | Search | Corrections | RSS | Help | Back to Top

BACK-DOORING REPORTERS

If reporters are willing to go to jail for 18 months, renewable (the life of the federal grand jury), and the government prosecutor wants badly enough to find out the reporter's sources as to who leaked secret government information, such as who is really a spy, why not just subpoena the reporter's telephone records from the phone company to see who called the reporter and who the reporter called. 

Then you'd crack the case, right?

Not so fast.

Here's the NYT article reporting on a judge's decision quashing this very sort of subpoena.

Stay tuned.

This is a wrinkle in the Valerie Plame case.