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2005-06-28

Protecting Whistleblowers or Shielding Government Wrongdoing? Supreme Court on Journalists and Anonymous Sources

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The Supreme Court rejected appeals from two journalists–Judith Miller of The New York Times and Matthew Cooper of Time Magazine–who may face jail time for refusing to reveal sources in the leak of the identity of undercover CIA officer Valerie Plame. We take a look at anonymous sources and how journalists used them to sell the war in Iraq. [includes rush transcript]

The Supreme Court, which ended its session Monday morning, handed down several major rulings before the recessing for the summer. The decisions deal with issues ranging from the public display of the Ten Commandments to the laws governing Internet file sharing to the use of anonymous sources by journalists.

The court, which adjourned until October, issued the last decisions of its term yesterday without a retirement announcement from the bench. Speculation has focused on Chief Justice William Rehnquist, who is 80 years-old and battling thyroid cancer and Justice Sandra Day O’Conner who is 75. A retirement could be announced later.

Today we spend the hour taking a look at the Supreme Court rulings. We begin with the court’s decision to decline to hear the case of two reporters who refused to reveal their confidential sources. Judith Miller of The New York Times and Matthew Cooper of Time Magazine were held in contempt of court last year for refusing to cooperate in the investigation of special prosecutor Patrick Fitzgerald. Chief Judge Hogan of the federal district court in D.C had ordered that the reporters be held for eighteen months or until the grand jury completes its inquiry.

Since December 2003, Fitzgerald has been investigating how the name of undercover CIA agent, Valerie Plame, ended up in a column written by conservative columnist Robert Novak. He had been investigating whether someone from the White House leaked the story to the press thereby violating a federal law that protects covert agents.

Valerie Plame is the wife of former Ambassador Joseph Wilson who wrote an Op-ed piece in the New York Times in which he disputed President Bush’s claim in his 2003 State of the Union address that Saddam Hussein tried to buy uranium from Niger. This was the administration’s key evidence that Iraq was rebuilding its nuclear program and it’s chief justification for the invasion a few months later. The White House later recanted the claim. Eight days after Wilson’s op-ed appeared in the Times, Novak’s column in which he revealed Valerie Plame’s identity, was published. At the time Wilson charged that it was an attempt by the Bush administration to intimidate other whistleblowers from going public.

The Supreme Court’s decision yesterday returns the case to the D.C court where Judge Hogan is expected to hear arguments about when and where Miller and Cooper will serve time.

  • John (Rick) MacArthur, publisher of Harpers Magazine and author of the book "Second Front: Censorship and Propaganda In the Gulf War."
  • Jim Naureckas, is the editor of Extra!, Fairness and Accuracy in Reporting’s bimonthly journal of media criticism. He is the co-author of "The Way Things Aren’t: Rush Limbaugh’s Reign of Error", and co-editor of The FAIR Reader.

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We are joined on the phone by Rick MacArthur, publisher of Harper’s magazine, author of the book, Second Front: Censorship and Propaganda in the Gulf War. In our New York studio, we are joined by Jim Naureckas, editor of Extra!, Fairness and Accuracy in Reporting’s bi-monthly journal of media criticism, and co-author of The Way Things Aren’t: Rush Limbaugh’s Reign of Error. He’s also editor of The FAIR Reader. We welcome you both to Democracy Now! First, Rick MacArthur, your response to the ruling on these journalists not giving up their anonymous sources?

RICK MacARTHUR: Well, it’s very disturbing. And it’s tremendously ironic, given that this is the — first of all, I don’t — I assume that this prosecution is not a — is not a neutral prosecution. I’m assuming it’s a political prosecution. Now, maybe I’m wrong, but the irony in there — that’s in this prosecution is that Judith Miller, and I guess Matthew Cooper, but particularly Judith Miller, is a friend of the Bush administration. There is not a journalist — if there’s one journalist who contributed the most to getting us into the war or getting us into the invasion of Iraq, and helped make — helped Bush make his case, it’s Judith Miller. So, you can’t say that they’re taking care of their friends.

So, on the other hand, as a matter of principle, I mean, I have been denouncing Judith Miller for two years, from way before the W.M.D. fraud was revealed. And we file at Harper’s magazine an amicus brief on her behalf, as a matter principle, because we do believe that reporters, and I, as a reporter, feel sometimes it’s essential to be able to protect the confidentiality of a source, but this is crazy, because she didn’t publish anything. It’s Novak who published — who revealed the name of the — of Valerie Plame.

So, the best I can — I can’t pretend to understand the inside politics of it, but it does seem to be a case where they’re taking care of their better friend, who is Robert Novak. And Novak, we can assume, cooperated with the prosecution, told the prosecutors who the other reporters were who the leaker attempted to leak to, because obviously this was a reprisal for Joe Wilson’s column in the Times, his op-ed piece. And they wanted to punish him, and they wanted to punish his wife, and — or punish him by making it impossible for her to — his wife to work anymore as a covert operative. But in the end, it’s just — it’s absolutely weird that Judith Miller would actually have to do time — I’m not sure whether there’s going to be actual jail time — when she is the best friend the Bush administration ever had.

AMY GOODMAN: Jim Naureckas of Fairness and Accuracy in Reporting. You take a different view on this.

JIM NAURECKAS: Yeah, I think Judith Miller’s role in this is kind of a — in a way, kind of a red herring. You know, she’s famous for her bad reporting on the weapons of mass destruction issue in Iraq and also some bad U.N. reporting, as well. But this really is not about Judith Miller. She didn’t report anything, nor did — and Cooper didn’t report until after Plame had been named, but this is not about their reporting. This is about their being witnesses to a crime, which is the government crime releasing information that the government did not have a legal right to release in order to punish a dissident by striking at his family.

AMY GOODMAN: And the crime was releasing information — the name of a C.I.A. operative.

JIM NAURECKAS: Right.

AMY GOODMAN: Undercover.

JIM NAURECKAS: Which — and then in this case, the disclosure is being used to punish dissent by going after the dissident’s family. It’s a very serious thing. We do at FAIR believe that anonymous sources can be very important in revealing government wrongdoing, but in this case, the anonymous source is a government wrongdoer. This is someone who is presumably acting on behalf of the administration to silence a administration critic. And to say that the reporters who have witnessed this crime have an absolute right not to testify about it is to say that the government has an absolute right to reveal any confidential information that the government has about individuals in order to punish those individuals for speaking out against the government. And that’s just a — that’s a sweeping power that I think it would be very dangerous to give the government.

AMY GOODMAN: Rick MacArthur.

RICK MacARTHUR: Well, I understand Jim’s point and, of course, we live in a country where we used to pride ourselves, at least, in the notion that nobody was above the law. So, the — part of me is sympathetic to what he’s saying, I mean, because, of course, you don’t want reporters to consider themselves, broadly speaking, above the law. But I’m also very mindful of precedence: the Morrison case during the Reagan administration, and so on, where the government sees an opportunity to chill leakers, and that the overall ambition of the Bush administration and of the Justice Department is to scare the hell out of the bureaucracy. It’s to scare the hell out of the civil service so that they don’t leak and so that reporters — and to discourage reporters from taking leaks or from taking information from confidential sources, because any time you get into one of these confidential source cases, you have to assume that the intimidation is not just aimed at the reporters, it’s aimed the at civil service. It’s aimed at the bureaucrats who might consider leaking in the future. And if Judith Miller and Matthew Cooper actually do time for this, it sends a message to the whole bureaucracy, to the whole federal civil service, similar to the leak of the Valerie Plame — Valerie Plame’s identity, saying don’t leak, and if you do leak, the reporters who you leak to may be punished, and next time, maybe the reporters won’t be so principled, and they’ll name you. So, I’m very, very concerned as a journalist. And I understand this is a slippery slope. It’s tricky. But overall, I think Judith Miller, who is a disgrace as a reporter, a real disgrace, and Matthew Cooper, who I don’t know anything about, as a matter of principle they need to be defended.

AMY GOODMAN: Jim Naureckas.

JIM NAURECKAS: Well, I think it’s important to distinguish between leaks from the government and plants by the government. These are two different kinds of animals. It’s one thing for a whistleblower to reveal government wrongdoing, and that kind of action, you know, I think is heroic and needs to be protected. And there needs to be stronger protection for journalists who don’t want to reveal that kind of source. On the other hand, the vast majority of anonymous sources that you see in mainstream media are not whistleblowers. They’re government operatives. They’re people who are working anonymously for the government in order to get out the government’s agenda. And I frankly am skeptical that the whistleblower who sees one of George Bush’s political operatives get off the hook for doing this is going to relate that in any way to their own situation. I think that it’s very easy to see the difference between somebody who is exposing what the government is doing and someone who is carrying out the government’s wrongdoing. That’s a separate category.

AMY GOODMAN: I wanted to read Joseph Wilson, Ambassador Joseph Wilson’s comment. We reached him yesterday, but he said he just wanted to put out this print statement. He’s the husband of the former C.I.A. operative, Valerie Plame, who is at the center of this controversial case. He said, "The two reporters may now have to go to jail. The fact that they may now have to go to jail is a direct consequence of President Bush’s refusal to hold his administration accountable for the compromise of the identity of the a C.I.A. officer, Valerie Plame Wilson. Had he enforced his edict that all members of his administration cooperate fully with the Justice Department investigation, we would not be where we are today." Wilson concludes, "Equally, some senior administration officials who spoke to Matt Cooper and Judy Miller today cravenly stand by while the two journalists face jail time because of a conversation they had with him. It’s an act of extraordinary cowardice that those officials not step forward to accept responsibility for their actions." Rick MacArthur, your response to Joe Wilson’s statement?

RICK MacARTHUR: Well, Joe Wilson, I think that’s a pretty good statement, because at least he expresses some sympathy for the freedom of the press aspect of this, the journalists’ side of this, but there again, you see, I’m pretty radical on this, I — if it were Novak under the gun, I would defend him just the same as — as hateful as he is, I would defend him just as sincerely as I would — as I defend Judith Miller as a matter of principle, because in a national security state of the sort we live in, if leaks get shut down, if this kind of leak gets shut down, by the bad guys, as well as by the good guys, the country becomes significantly less democratic. And less — we have less and less recourse to the press as a balancing factor in what’s becoming more and more a one-sided argument in favor of national security.

So, whatever the — it’s a little bit odd the way Wilson phrases it, but I think he’s right that ultimately if there is going to be a law about naming C.I.A. agents, the people who should be punished for not cooperating are people in the administration, not reporters who happen to listen in to conversations.

Once again — I’m not that troubled by Valerie Plame being named in a newspaper column. I think the cult of secrecy around the C.I.A. is absurd as it goes back 30 years to the case of the C.I.A. station chief in Athens, his name being revealed, and then him being killed I think six or seven days later, assassinated six or seven days later. I think he was — his name appeared in a newsletter, a sort of a left wing anti-C.I.A. newsletter. And the response at that time was, 'Ah, this proves that if you name agents, they're going to be killed, or they’re going to be compromised,’ and so on and so forth. Except that everybody who wanted to know who the C.I.A. station chief in Athens already knew who it was. So I never bought that. It’s the job of the C.I.A. station chief in a given city, foreign city, to be known, so that they can be approached by other agents and by people who want to leak them information.

So, I don’t have — I have never been able to get that upset about Valerie Plame’s name being placed in Novak’s column. It’s tit for tat. It’s the Bushies getting even with Joe Wilson, who I think was trying to stand up for the integrity and the honor of the civil service, because if you recall, the context of this is that after the invasion of Iraq, and it became aware — it became clear that they weren’t going to find any atomic bombs buried underground, Bush and the administration started blaming the civil service, saying, 'Well, it's their fault, they told us there were going to be —- -— there were chemical weapons and atomic bomb components all over the place. It’s their fault.’ And I think to some extent Wilson was speaking for a beleaguered and insult-injured civil service that said we’re not going to take the fall for this. This was a political decision to manipulate the intelligence.

AMY GOODMAN: Jim —

RICK MacARTHUR: By the Bush administration. It wasn’t us.

AMY GOODMAN: — Naureckas, final comment.

JIM NAURECKAS: The government has a tremendous amount of information on every one of us, medical information, political information. With the increasing amount of surveillance going on in the post-September 11 era, they’re getting more and more information on us. And to say that journalists would never have to reveal who leaks that kind of information is really putting everyone of us in grave jeopardy of manipulation by the government.

RICK MacARTHUR: Don’t you think that the leakers should be — all of the emphasis should be on punishing the leaker as opposed to the journalist?

JIM NAURECKAS: But it’s a crime that only has one witness. The crime begins and ends when the conversation with the journalist starts and finishes. And so if you say that the journalist never has to talk about it, there is no way to prosecute that crime.

RICK MacARTHUR: Well, if you were talking about a murder case, I would —

JIM NAURECKAS: Murders have bodies.

RICK MacARTHUR: What?

JIM NAURECKAS: Murders have bodies.

RICK MacARTHUR: Yeah, but I mean, you know, if you’re a material witness to a murder, for example, or to a bank robbery, then I could see a reporter being compelled to testify and not saying, well, you know, 'I had a secret conversation with a bank robber before they acted, before they robbed the bank, before they committed the murder.' Then I can see the argument, but when we’re getting into this area of state secrets, national security, national security state, you have got to defend the worst of the press, as well as the best of the press, because if this were a — if this were a good guy journalist, if it were an I.F. Stone kind of a journalist, I think Jim might feel differently.

AMY GOODMAN: Well, on that note —

RICK MacARTHUR: If it weren’t Judith Miller and it wasn’t Matt Cooper, if it was somebody more sympathetic to our political point of view, I think that he might be more sympathetic to their situation.

AMY GOODMAN: Two seconds.

JIM NAURECKAS: No, I think there is a principle here about keeping the government accountable and the anonymous source issue cuts both ways on that.

AMY GOODMAN: I want to thank you both for being with us. Jim Naureckas of Fairness and Accuracy in Reporting and Rick MacArthur of Harper’s magazine. Thank you.

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