By Meteor Blades

Imagine for a moment that Sunday Times reporter Michael Smith was on the payroll of an American newspaper. Imagine that the exposer of the Downing Street minutes had met someone for a drink at an out-of-the-way bar in D.C.  Imagine that the someone was a White House insider who had slipped Smith the minutes from a secret June 2001 meeting. Imagine that those minutes contained proof that George Bush, Dick Cheney, Condoleeza Rice, Donald Rumsfeld and others had made plans to take out Saddam Hussein just as soon as they could find an excuse for doing so.

Now imagine that a federal prosecutor was demanding that Smith surrender to a grand jury the identity of the person who illegally gave him classified documents relating to national security, and that the federal courts agreed that Smith had no First Amendment or other grounds upon which to withhold the source’s identity. And imagine that if he continued to do so, he would face jail or fines or both.

Would there be as gleeful a response in left blogworld as there was Monday when the Supreme Court chose to let the DC Appeals Court’s ruling stand in the contempt case of  Judith Miller and Matt Cooper? Would so many liberals be arguing that reporters should have no “special rights” to shield the identities of their sources? Or that any reporter who accepts classified documents and refuses to reveal their source is an accomplice to treason, particularly when American soldiers are dying in an overseas war?
Let’s face it, if the High Court had granted certiorari and taken on the Miller-Cooper case, its ultimate ruling would almost undoubtedly have come down in favor of the Appeal Court panel’s decision . After all, in Branzburg v. Hayes, which provides precedent in this matter, a far more liberal Supreme Court than today’s ruled 5-4 against the very kind of reportorial privilege Miller and Cooper are claiming.

I’m not a big reader of Cooper’s stuff. But I’ve read plenty of Miller’s, and  I’m definitely no fan. Her Iraq reporting, as we know too well, frequently crossed over into outright propaganda unbefitting a principled, independent journalist and contributed to – what else can one call it – warmongering. She ought to be ashamed of herself. Her editors ought to be ashamed of her. And, in a profession where ethics and principles counted for something, she would have been fired long ago (though it sounds as if The New York Times is yielding to the rightwing juggernaut and preparing to hire more just like her, if Executive Editor Bill Keller’s letter to the staff means what it says).  

However, while I think a good stiff comeuppance for Miller would be delicious, I’ve been just about sickened by the vengeful myopia expressed by broad-brushers who think reportorial privilege is a crock, valueless, even counterproductive because the media are corrupt. Who can dispute that we live in an era when a highly concentrated megamedia kow-tows instead of speaking truth to power and operates rather often as little more than a public relations arm of the government and the oligarchs that control a good portion of it? Who can dispute that truly investigative journalism is all too rare nowadays, particularly in the national arena? Who can argue that once-respected reporters at once-respected outlets ought these days to be wearing clown make-up? Not me. But anyone who thinks curtailing reportorial privilege is a just penalty for a sycophantic press, a remedy for media decay or helpful in any way toward keeping an eye on government shenanigans fails to see the big picture.

I know it was a long time ago, and I know people are sick of hearing about it, but the Pentagon Papers example is relevant. Not the prior restraint case in which the government argued unsuccessfully before the Supreme Court that The New York Times and Washington Post be enjoined from publishing secret documents exposing a web of U.S. government lies regarding the war in Southeast Asia. But rather the case of Daniel Ellsberg.

A Rand employee, Ellsberg copied 7000 pages of classified documents and, after failing to obtain interest from antiwar Senator J. William Fulbright in using them on the floor of the Senate, passed them along to a Washington Post reporter. But the publisher and editor chose not to print the documents. So Ellsberg gave the papers to a <Times</i> reporter. Traitorous outlawry in the view of many citizens and the government officials who later indicted him on 115 years worth of charges relating to theft, conspiracy and espionage. Courageous whistle-blowing in the eyes of other Americans who had by then witnessed seven years of the Vietnam meat-grinder.

As Ellsberg knew would be the case, the FBI figured out fairly quickly who had passed the papers, but he had already gone underground. When he surfaced not long thereafter, he was indicted. Charges were dismissed when grave government misconduct was uncovered, including an attempt to assassinate him, which failed only because the crowd was too large. Had those charges stuck, and Ellsberg had been convicted, he might still be doing time.

Nobody at the Times or the Washington Post was ever subpoenaed to reveal the source for the Pentagon Papers. But imagine a reporter at one or both newspapers had been subpoenaed and refused to reveal Ellsberg’s identity. Would all those who today are cheering Miller’s and Cooper’s potential time in the slam have been cheering then?

Yes, yes, I know these are not perfectly congruent situations. In one, a whistleblower violates national security laws for the public good, a case of treason. In the other, a senior administrator at the White House violates national security laws to cynically manipulate a willing “journalist” into outing a secret agent as punishment for her husband’s exposure of government concoctions in furtherance of a war, a case of treason. Surely, I can distinguish between these? Yes. But neither I nor those gleeful over Miller’s predicament get to make those decisions.

Instead, they are in the hands of courts that are increasingly reactionary, many of whom are hostile to the very idea of a free press. It seems to me the epitome of political naivete to suggest that we who spend practically every waking moment questioning authority can possibly benefit when rightwing courts are the ones drawing distinctions between reporters who use confidentiality to protect the corrupt, cynical and powerful from those who use it to protect the honest, powerless and public-spirited.

For the record, I think reporters who vow they will not reveal a source should stick to their vow even if it does mean going to jail. That’s the only principled way to proceed. More than two decades ago, I found myself preparing for the possibility of going to jail after writing a series of uranium-mill licensing stores in which a grand jury sought to discover my source for a particular bit of secret information. I was threatened with contempt if I refused, but as my pro bono lawyer was preparing the case, the grand jury’s term expired, and when the new grand jury was seated, it wasn’t interested in pursuing the matter further. I doubt Judith Miller or Matt Cooper will be so fortunate. If they do give up their source, despicable isn’t a strong enough word to describe them. If you say your lips are sealed, they should stay that way. From that perspective, I agree with those who say they should do their time.

There is, however, a big difference between saying that a promise is a promise no matter the penalty and actually cheering when the promiser is punished. I sure would be uncomfortable as an American Michael Smith with so many people on “my side” of the political spectrum engaging in that behavior.

The jumble of state laws shielding reporters (or failing to) and the differing ways in which the 12 circuit courts have interpreted Branzburg regarding reportorial privilege cries out for a federal shield law. Three are now making no progress in committee. These are H.R. 581, which  was sponsored by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.); S. 340, introduced by Sen. Richard Lugar and S. 369, introduced by Sen. Christopher Dodd (D-Conn.) Such laws ought to be drawn to protect bloggers as well.

Cross-posted at The Next Hurrah.