The Death of Journalism, Part II: Reporters Without Borders and Judith Miller
[*Some minor edits added for clarity]
I have always appreciated the work done by Reporters Without Borders (or Reporters sans frontieres, RSF) to serve as an organization to preserve the freedom of speech and speak out for the rights of reporters everywhere in the world. This week, however, I saw their annual Press Freedom rankings for 2005. Imagine my shock when I saw this in the summary of their report (emphasis mine):
The United States (44th) fell more than 20 places, mainly because of the imprisonment of New York Times reporter Judith Miller and legal moves undermining the privacy of journalistic sources.
This was a report which starts with this (emphasis mine):
North Korea once again comes bottom of the Reporters Without Borders fourth annual World Press Freedom Index, released today. It is closely followed in the 167-country list by Eritrea (166th) and Turkmenistan (165th), which are other “black holes” for news where the privately-owned media is not allowed and freedom of expression does not exist.
Journalists there simply relay government propaganda. Anyone out of step is harshly dealt with. A word too many, a commentary that deviates from the official line or a wrongly-spelled name and the author may be thrown in prison or draw the wrath of those in power. Harassment, psychological pressure, intimidation and round-the-clock surveillance are routine.
Just amazing. Almost sounds like the Big Joke - also known as the Society of Professional "Journalists" (SPJ) [see The Death of Journalism] - did their research for them.
So, even though Judith Miller has been proven to be a person who was/is:
- The most important and ardent and willing relayer of Government propaganda in the journalism community in the United States and an unofficial "charter member" of the Government unit in charge of spreading lies
- A serial liar [also see Jay Rosen's links]
- Someone who lied to her fellow journalists and her management in order to cover-up a crime by one of her sources, a crime in which she was an unofficial co-conspirator [and in the process almost irreversibly soiled the New York Times' already poor reputation for being an informal mouthpiece for the GOP and the Bush administration in their news pages (starting from the Clinton years)]
- Who carelessly outed the name of an anonymous source (Amy Smithson) years ago
- One whose supposed First Amendment martyrdom had as much to do with reducing criminal exposure for her co-conspirator buddy Scooter Libby as it did for a desire to get out of jail since she "owed" it to herself to return to the high life in the Ritz-Carlton
- Who misled a grand jury in a criminal investigation to willingly help cover-up a crime by the Government and her co-conspirator buddy (Scooter Libby) against an innocent American citizen (Valerie Plame)
...she is the reason why the U.S. has fallen in RSF's rankings of Press Freedom!
Let me point out something else. RSF complains about legal challenges to the privacy of journalistic sources in the U.S., effectively comparing it to what happens in authoritarian regimes. This is simply outrageous and ridiculous. Perhaps they should read the ruling of the DC Appeals Court and Judge Tatel's comments (bold text is my emphasis):
Finally, petitioners offer no compelling reason to reconsider the panel’s ruling on the due process issue. Claiming a right to review evidence used to find them in contempt, petitioners object to the district court’s and panel’s reliance on ex parte submissions to determine that any conceivable privilege was overcome. But barring an absolute privilege—something no federal common law decision endorses and that Branzburg forecloses as a First Amendment matter—reporters either enjoy no privilege, in which case compelling their testimony requires no evidence at all, or they hold a qualified privilege, that is, a privilege subject to exceptions, much like the crime-fraud exception to the attorney-client privilege, see, e.g., United States v. Zolin, 491 U.S. 554, 563 (1989), and the imminent-harm exception for psychotherapist-patient communications, see Jaffee v. Redmond, 518 U.S. 1, 18 n.19 (1996). If the privilege is qualified, then ex parte review, far from violating due process, affords a critical protection to journalists: it permits the court to demand a detailed showing by the government that it has satisfied the criteria for overcoming the privilege.
I certainly understand petitioners’ preference for reviewing the evidence themselves, but given the “‘indispensable secrecy of grand jury proceedings,’” United States v. R. Enterprises, Inc., 498 U.S. 292, 299 (1991) (quoting United States v. Johnson, 319 U.S. 503, 513 (1943)), it can hardly represent an abuse of discretion for the district court to deny them that option.
Strong guarantees of secrecy are therefore critical if grand juries are to obtain the candid testimony essential to ferreting out the truth. See generally In re Grand Jury Subpoena, 397 F.3d at 973-74 (discussing reasons for grand jury secrecy). Accordingly, we have approved of ex parte review in applying the crime-fraud exception to the attorney-client privilege—a context precisely analogous to application of a qualified reporter privilege.
Also read Judge Hogan's original ruling.
Further, in their brief to the Appeals Court, Patrick Fitzgerald, et al. argued as follows (bold text is my emphasis):
Although the government took the position that it was not legally required to make any factual showing prior to demanding compliance with the subpoenas, in order to assure the district court that the subpoenas were appropriate, the government submitted, ex parte and under seal, detailed summaries of evidence gathered during the course of the investigation, with specific references to grand jury witness testimony, and materials identified as “classified.” SGA-287-88. [page 4]
The subpoena was issued in full compliance with the Department of Justice guidelines regarding the issuance of subpoenas to members of the news media, which require that subpoenas in criminal cases be issued only where there are reasonable grounds to believe that a crime has occurred and that the information sought is essential to a successful investigation, particularly with reference to establishing guilt or innocence; that subpoenas be limited in subject matter and time frame; that subpoenas to members of the media be issued only after all reasonable efforts have been made to obtain the desired information from alternative sources, and after negotiations have been conducted in an attempt to obtain voluntary cooperation; and more generally, that determinations regarding the issuance of subpoenas be made with the goal of striking “the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.” A-35. See 28 C.F.R. § 50.10. [pages 7, 8]
Grand Jury Subpoenas to Miller
On August 12 and August 20, 2004, grand jury subpoenas were issued to reporter Judith Miller and her employer, the New York Times, seeking documents and testimony related to “conversations between Miller and a specified government official occurring between on or about July 6, 2003 and on or about July 13, 2003, concerning Valerie Plame Wilson (whether referred to by name or by description) or concerning Iraqi efforts to obtain uranium.” A-176, A-178, A-230. These subpoenas were issued in compliance with the Department of Justice Guidelines. A-275. More specifically, the limited information sought by the subpoenas was expected to constitute direct evidence of innocence or guilt, and was necessary for the completion of the investigation, and all available alternative means of obtaining the information had been exhausted. Id. [page 10]
In moving to quash the subpoenas, no allegation was made that the investigation was being conducted in bad faith or for purposes of harassment. Rather, the appellants claimed that as members of the media, they have a First Amendment privilege not to give evidence to the grand jury because doing so would impede their news gathering activities, especially if they would be required to reveal the identity of confidential sources. The district court properly denied the motions to quash based on Branzburg v. Hayes, in which the Supreme Court flatly rejected the claim that there is a First Amendment reporter’s privilege that allows reporters to resist giving evidence in a grand jury investigation being conducted in good faith. In Branzburg, the Supreme Court engaged in a thorough analysis of the competing interests, including the public’s right to “every man’s evidence” as the grand jury fulfills its vital role in law enforcement and the alleged chilling effect that giving evidence would have on news gathering activities. [page 11]
In a nutshell, rather than consider the facts of the case in detail, RSF, just like SPJ, are out making the Miller case into one of First Amendment martyrship.
In effect, RSF has made their rankings highly questionable. If following the law, using judicial intervention to put limits on Government power and preventing so-called journalists from acting as Government propaganda organs retaliating against whistleblowers is the same as not having laws, not following laws and using Government machinery to punish journalists who question Government actions, then these ratings and rankings are an insult and mockery to the freedom of speech and to democracy.