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Monday, June 27, 2005

Judy's Turn to Cry 

Reporters Judith Miller and Matthew Cooper are bound for jail unless they name the administration official who outed CIA operative Valerie Plame:
The U.S. Supreme Court will not hear the appeal of journalists Matthew Cooper and Judith Miller, who have been held in contempt for refusing to disclose who leaked the identity of a CIA agent to them.

The court's decision not to take the case, which could have led to a major precedent for the rights of reporters to keep sources confidential, means that Miller and Cooper, who were ordered to jail for their actions, will likely have to surrender sometime soon . . . .

Cooper, a Time magazine reporter, and Miller, who works for The New York Times, were held in contempt of court last year for refusing to divulge the source or sources who leaked the identity of CIA Agent Valerie Plame to them. Judge Thomas Hogan of the U.S. District Court held them in contempt in the fall, ordering them to jail if they refused to reveal the source. Plame's identity had been revealed publicly in 2003 by columnist Robert Novak.
A statement from Time, Inc., suggests what Miller and Cooper's next move will be:
"Statements from the Special Counsel’s office suggest his investigation has changed substantially since last summer, when he presented secret evidence to the district court. There is reason to believe, for example, that the Special Counsel may have determined that disclosure of Valerie Plame’s identity to Robert Novak did not violate the Intelligence Identities Protection Act. If that is correct, his desire to know the sources for a subsequent article by Mr. Cooper and others, that appeared on Time.com, may be solely related to an investigation into whether witnesses made false statements during the course of his investigation into this non-crime. Such an investigation of obstruction of justice or perjury may not rise to the level that justifies disclosure of information from or about a reporter’s confidential sources under federal common law.

"Under these circumstances, where the facts appear to have changed and where the appeals court has since elaborated on a reporter’s privilege under common law, Time Inc. and Matt Cooper will ask the District Court to review and reassess its orders."
All of which would seem to reinforce John Dean's speculations of a month ago. Joseph Wilson's publishers, who were planning a revised and expanded edition of The Politics of Truth, hired reporter Russ Hoyle to investigate the investigation into Plame's outing:
House leaks is now hostage to Fitzgerald's campaign to force Cooper and Miller to testify." But, again, why?

Other information provided in Hoyle's report provides insight. Hoyle writes that Washington Post reporter Walter "Pincus, for example, reportedly confirmed the time, date, and length of his conversation with a source…, but Pincus would not reveal his or her identity."

Hoyle continues, "That lent credence to reports that Fitzgerald had subpoenaed records of every contact that White House personnel had had with reporters during the period in question and was engaged in a meticulous search to match such times and dates with records of meetings and telephone calls between reporters and Bush officials gleaned from calendars and telephone logs."

So let's suppose this kind of matching is indeed going on. Plainly, Special Counsel Fitzgerald must have matched Cooper and Miller's numbers to calls to or from the phone lines of White House personnel - just as he did with Pincus. But just as plainly, Fitzgerald cares very much about the content of the conversations with Cooper and Miller - which may or may not have been the case with Pincus. He may also care about the identity of the source to whom they spoke - which was not the case with Pincus . . . .

For months, it has been rumored that Fitzgerald has found only a low-level leaker in the White House - one who seems not to have violated the 1982 Intelligence Identities Protection Act, which makes it a crime to disclose an undercover CIA operative. But it is only criminal if the leaker knew the name was classified, and that the CIA sought to keep it classified. (A low-level person might not have had this knowledge.)

If so, that's odd. Remember, Novak credited two "senior" Administration sources. But let's suppose it's true. In that event, it is quite likely - and many lawyers following the case believe - that the investigation has shifted to possible charges of perjury and/or obstruction of justice, more than likely by big fish . . . .

There is no privilege in the law that protects criminal activity. Not for lawyers, not for priests, not for doctors -- and not for journalists. And I believe it unlikely that the Supreme Court would create one with this case.

Indeed, if they do not testify, they are arguably complicit in the crimes that the Special Counsel believes have occurred. There must be a line: At some point, in protecting sources committing crimes, newspersons themselves become complicit in those crimes. Protecting a source whom a reporter learns has lied (or obstructed justice) strikes me as being across that line. If Miller and Cooper have not crossed the line, they certainly have their toes on it.
UPDATE: Zemblan patriot D.E. is running a Judy Miller contest over at Slate:
What movies should she watch in the [prison] recreation room that will both entertain and educate her? Let's take All the President's Men off the table—if for no other reason than that Mark Felt acted, ultimately, in the country's best interest. I'm open to political or journalism melodramas, of course. But don't discount comedies, Westerns, war movies, and even love stories. (Any Judy-Ahmad Chalabi parallels come to mind?) Remember, we don't just want escapism; we want Judy to come out a better person.

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