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08 July 2005 @ 10:01 am
Counterpoint: the Plame/Cooper/Miller case isn't about journalism at all  
I’ve watched and read and listened to a whole lot on the Valerie Plame/Wilson case, which has now landed one reporter (Judith Miller of the NY Times) in jail and whipped the entirety of the journalism establishment into a hellacious frenzy over what they see as an egregious assault on the press freedom. And for the longest time I’ve been trying to figure out what it was that I was missing. A lot of very smart people see this case in a light that doesn't quite make sense to me, so it's possible that I'm failing to consider important factors. If so, I trust those reading this to explain my errors.

But: to my way of thinking there is something profoundly wrong with the way this case is being framed. I’m not talking about the obvious legal curiosity of GOP sock-puppet Bob Novak going more or less unmolested by those investigating the case (as far as we know), either. Instead, I'm talking about the way the issues are being presented and interpreted by the news media, which obviously has a pretty big stake in the outcome of the case(s) before us.

Here’s the crux of my complaint: in what way is the Judith Miller/Matthew Cooper case even about journalism? Yeah, they’re both reporters by trade, but that doesn’t make any case in which they find themselves embroiled a journalistic case, right? I mean, if Cooper robbed a bank, he couldn't hide behind the 1st Amendment, could he? And the argument that they're protecting a source is only salient if the person in question was acting as a source at the time. The fact that the person may have been a source in the past does not confer a permanent status or immunity. "Source" isn't a job title, and in the case in question that status only attaches if the person was providing information relevant to a developing and legitimate news story.

Let’s consider a hypothetical case. Call our composite reporter character Harry Hardball. Harry gets a call from a trusted administration source. Let’s call this highly placed White House official Fred Felonious. Fred says I’m going to give you a story, but I need a guarantee of confidentiality. Harry, a dedicated newspaper vet, agrees. He’s dealt with Fred before and Fred has been a useful and reliable source of information in the past.

They meet, and Fred lays this on him:

I’m going to commit a federal crime and you’re going to help me. Scarlett Rose is a secret CIA operative and I want you to report it.

In telling Harry this, Fred violates all kinds of federal laws. Further, Fred has now implicated Harry in the conspiracy. So, pretend you’re Harry - what do you do?

Well, first off, you don’t report it because it’s not news. The public knows there’s a thing called the CIA. We know they have employees. And we know that some of those employees are double-naught spies. So unless you work for the Hillbilly Times and your readership would somehow be stunned to learn that there really are secret agents in the world, Agent Rose ain’t news.

Further, it’s not news if the identity of the alleged agent isn’t itself newsworthy. If instead of Scarlett Rose the ID of the agent were, say, Michael Jackson, that might be news (especially in the bread & circuses world of contemporary Big Journalism®). Might be, even if the reasons are an appalling affront to thinking people everywhere. But in this case, the closest Scarlett comes to being a newsworthy name is that she’s married to Larry Loudmouth, a troublesome know-it-all who’s been a burr under Fred’s saddle for months.

But simply being on a White House shit list doesn’t make you a lede-worthy name, right? So there’s nothing I can see in Scarlett’s case that would make it legitimate news. (And we have to conclude that Harry’s employer, the Beltway Picayune, agrees with us, because they don’t run the story.)

Second, you now have first-hand evidence of high administration corruption. Specifically, you have WH officials trying to game the press into executing a dirty tricks campaign against their enemies. (And hopefully your tape recorder was running.)

Now, I’m just a simple country boy, so I may be missing some subtlety and nuance here, but doesn’t this sound like it might be a story?

Maybe Harry is more ethical than I am, but I don’t give a happy goddamn what I promised you. If we’re standing in line at the liquor store and you say “here, hold this,” and I look down to see that you’ve put a Saturday Night Special in my hand and I look back up just as you pull your wife’s pantyhose over your head and yell “hands in the air, this is a stick-up,” hey, all bets are off.

If you drop Scarlett’s name on me, as Fred did to Harry, I think I’d have to step back and say thanks, Fred, but no thanks - you’re the story now. As a reporter I have an obligation to the truth, and being pimped by those who want to use me as a tool against the truth are by definition my enemies, and whatever foundation our agreement of confidentiality might have been based on is instantly null and void when you attempt to betray me into the service of corruption.

See, there’s a contract in our agreement of confidentiality, and it goes both ways - when you swear me to secrecy, you incur an obligation to behave equally ethically. You cannot use my oath in bad faith to place me in undue jeopardy without some compelling reason. And if you break that trust, you’re on your own. I haven't broken our contract when I write the story about your corruption, you broke it when you made me a party to a felony.

That’s the issue for me. TIME and the NYT and their reporters are not defending a journalistic principle. Quite the opposite - both organizations appear to be protecting those they’re obliged to expose.

Listen, I understand the importance of confidentiality. I’m a prof in a journalism program and there are few things in our entire culture I see as being more essential than the freedoms codified in the 1st Amendment. Press freedom isn’t just important to democracy, it’s a prerequisite. Further, I’m all in favor of doing anything we can to encourage whistle-blowers in this age of high governmental and corporate kleptocracy. But - huge but - this only applies in cases where the reporter and the source are actually working on a real story.

What is happening in the Plame case is different: reporters and agencies are conflicted over whether to reveal a playground secret. We’ve all been sworn to secrecy before, by friends, relatives, co-workers, whoever. But if the secret turned out to be that the friend, relative, or co-worker was committing a felony, we wouldn’t be able to claim any special privilege when we were summoned before a grand jury. It might be noble to keep your word even if you have to go to jail, but that’s not a press freedom issue. It’s simply your choice to place a personal confidence ahead of the dictates of the law. You have that choice, and you may choose to endure the consequences.

(As an aside, I don’t fully agree with Time Warner’s suggestion that the press isn’t above the law. Really, it depends - if the law and those acting in its name are corrupt, it’s the job of the press to defy that law in the name of the higher principles of justice and freedom. But that’s not the issue in this case by a long shot. Also, let me be clear that I do sympathize with the sentiments of reporters and press agencies who are trying to defend the sanctity of the 4th Estate, especially in an age where the White House is working on all fronts to annihilate their ability to do their jobs. Of course, I’d have a little more sympathy for them had they actually shown this kind of rabid faithfulness to their mission in the run-up to the Iraq war and during last year’s election cycle, but that’s another issue.)

The line being universally propagated by the press in the Plame case is that it's a press freedom issue. Sorry, but it’s not. It’s a press freedom issue only if the reporters are acting in a legitimately journalistic context.

Miller and Cooper are protecting friends, perhaps, or allies, or acquaintances. They may be protecting people who have been legitimate and valuable sources in the past. But they aren’t protecting sources at the moment - as I say above, you’re only a source if you’re acting in the context of the development of legitimate story. Just because you were a source last year doesn’t mean you are this year.

If the only story in sight at the moment is your own felonious behavior, you’re not a source, you’re a criminal.

And the guy protecting you isn’t a reporter, he’s an accessory after the fact.

Now Playing: "Leaving New York" by REM
Karl: withdrawnepinoid on July 8th, 2005 08:52 am (UTC)
Thanks! That crystallized a lot of what I was thinking regarding the situation. I have wondered another piece of it - why is Novak seemingly immune to what is going on. Is he revealing his source(s)? I would think he would be brought up on federal charges now because he broke the law in revealing Plame. Ignorance of the law hasn't generally excluded someone from prosecution in the past. Any ideas of what is going on?
Samlullabypit on July 8th, 2005 09:03 am (UTC)
Some think Novak is immune because he's a valued GOP mouthpiece. Others think he's cooperating. Hard to say right now.
Endless Pajama Larkscratchtasia on July 8th, 2005 10:25 am (UTC)
Excellent post. It keeps getting lost that this situation is not about shielding a whistleblower who was exposing wrongdoing. It's about providing cover for someone committing a criminal and morally reprehensible act
(Anonymous) on July 9th, 2005 11:59 am (UTC)
Why is Novak not being touched? He mentioned TWO administration sources in his column. Suppose that, in addition to Fred Felonious, Ed Elected Executive was in the room and actually making the revelation. (Hence Novak's careful statement about who didn't SAY to him the name of Palme.) If I'm the Special Prosecutor, I'm going to want to have my case nailed down as solidly as possible from the start.

Novak may have rolled already. But I want two, or better yet three, witnesses to make sure I have a solid case before I finally start issuing indictments. Hence the focus, just now, on Miller and Cooper: whether they published anything or not, they can help establish a pattern of behavior that refutes a possible "I accidentally slipped and mentioned a name" defense.
(Anonymous) on July 9th, 2005 10:48 pm (UTC)
Strawman Argument
Nice job of setting up a bogus premise that you can knock down easily. Now let's try a plausible scenario: Administration source calls up reporter and says, "OK, this ex-ambassador who's been shooting his mouth off, well, he has big credibility problems. See, his wife is in the CIA, and she boondoggled him this trip to Africa that he's now using to criticized the Administration." That's your news story. Source *doesn't* say she's a covert agent. Reporter assumes she's an open CIA employee, and therefore printing her name is not a crime -- the crime is *knowingly* revealing the name of a *covert* operative. (Ignorance of the law is not the issue here; it's ignorance of Plame's status as a covert operative that excuses Novak.)

As for why Novak's not in jail, presumably he gave up the names of his sources. As to why Cooper and Miller were targeted even though Novak gave up his sources, it may well be as was suggested above that Fitzgerald wanted to nail down everything before the indictments came down. It may also be that there were multiple leakers. It may be that one of Cooper's or Miller's sources made a comment incriminating or exculpating himself or someone else. It disturbs me that someone who teaches journalism evinces such poor critical thinking. The post reads like someone who reached a conclusion and was only interested in an analysis that supported it -- a trait more usually found among the Adminstration (*cough* Downing Street Memo *cough*).

As for there being no journalistic merit in protecting sources who commit felonies by leaking classified information, I have four words for you: Daniel Ellsberg, Pentagon Papers.

-REM (damned if I can figure out how to sign this without signing up for LiveJournal)
(Anonymous) on July 10th, 2005 08:15 am (UTC)
I saw the following items after posting the above comment.

Here's a useful Michael Isikoff piece tying in the Cooper e-mails regarding his conversation with Rove as an effort to point out problems with Wilson's credibility. http://msnbc.msn.com/id/8525978/site/newsweek/

And here is why putting reporters in jail for publishing stories based on illegally leaked information is very, very bad. It's called a "chiling effect." http://www.nytimes.com/2005/07/09/national/09cleveland.html?ex=1121572800&en=fe99728fc8bf8730&ei=5065&partner=MYWAY