| July 15, 2005 The Bramble Bush by Kevin Morford Attacks on Free Speech and Press
Shall I shed some tears for Judith Miller as she sits in jail? She is the New York Times reporter who heavily relied upon anonymous sources to support her very influential pre war reports about all the weapons of mass destruction in Iraq. You know, the ones that were never found. In an ironic turn of events, she has now been sent to jail for up to four months because she refuses to disclose the identity of a source whom may have revealed to her the identity of an undercover CIA operative. Journalists all over the country are outraged that one of their own has been sent to jail for refusing to reveal the identity of a source who had been promised confidentiality. They argue that the First Amendment gives journalists a constitutional right to protect their sources of information from disclosure. I have a different perspective on these events. I have nothing against the First Amendment. As a card carrying member of the ACLU, I strongly support freedom of speech and of the press. A robust, independent and diverse set of media outlets is crucial to the proper functioning of a representative form of government. One of the reasons I agreed to write this column is to increase the diversity of opinions which are available in the market place of ideas. But no rights, not even the rights of freedom of speech and freedom of the press, are absolute. Sometimes they clash with other fundamental rights, or with the ability of another person to exercise the same rights. Sometimes people disagree regarding the proper scope of the right in question. There are legitimate reasons why even fundamental constitutional rights must be limited in some circumstances. When Judith Miller promised strict confidentiality to her anonymous source, she did so without any legal basis under federal law. Neither the U.S. Code nor the Federal Rules of Evidence provide for confidentiality of communications between a reporter and a source. The First Amendment also says nothing about confidential communications being legally protected. The U.S. Supreme Court has interpreted the First Amendment and found that it does not provide a constitutional right for a reporter to resist a grand jury subpoena. There are federal laws, however, which require everyone, including journalists, to provide information which has been subpoenaed by a grand jury, with only very limited exceptions. As a veteran journalist, Judith Miller presumably knew these facts when she made her promise of confidentiality. In essence, she was telling her source that she would break the law if necessary in order to protect the identity of the source. Sometimes we are called upon to break the law in service to a more important principle. Civil disobedience is a time honored way of protesting injustice and pushing for change. When I look at the Judith Miller case, however, I see her going to jail in order to protect a political hit man (or woman) for the Bush administration. It is the very act of talking to the journalists which potentially constitutes the criminal act which is under investigation. The identity of the CIA agent was apparently disclosed to journalists in order to exact retribution on the agent’s husband, Joseph Wilson. Mr. Wilson had published a column eight days earlier, accusing the Bush administration of relying on faulty intelligence in the lead up to the invasion of Iraq. We do not know for certain who Judith Miller’s source is, but there are good reasons to believe that the source is a highly placed member of the Bush administration. In the first place, only an insider is likely to know the identity of an undercover CIA operative. In the second place, the only plausible motive for the leak is a desire to retaliate against the husband of the CIA operative. Only a member of the Bush administration is likely to have both the information about the identity of the CIA operative and the political motive to retaliate against an administration critic. So here is our best understanding of what happened. Mr. Wilson writes a column, exercising his First Amendment rights of freedom of speech and of the press. Someone in the Bush administration does not like what Wilson wrote, and in retaliation commits a criminal act by disclosing the name of Wilson’s wife, a working CIA undercover operative, to journalists. Judith Miller promises this criminal that she will in turn break the law if necessary in order to protect his or her identity. What interest is served by this promise of confidentiality? The right of administration officials to commit criminal acts in order to exact revenge against a person who was exercising his rights to freedom of speech and of the press? Judith Miller is breaking the law in order to protect another law breaker, thereby protecting the perpetrator of an anonymous political hatchet job, and concealing newsworthy information about a criminal in the Bush administration in the process. That is not exactly the stuff of civil disobedience, and not exactly a principle that journalists should be cheering for. Excuse me if I do not shed any for Judith Miller. I’m more concerned about the threat to our freedoms of speech and press from criminals in the Bush administration than I am about a reporter who chooses to break the law in order to aid those criminals. Kevin Morford is a political activist and an attorney in private practice in the Anchorage area. He can be reached at kmorford@insurgent49.com. |
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2005
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Reserved. in-sur-gent (in sur'jent), n. 1. a member of a group which revolts against the policies of its leadership. |
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