Almost simultaneously with the web publishing her own account of her involvement in the Valerie Plame Affair, New York Times reporter Judy Miller spoke at an awards ceremony by the California First Amendment Coalition (CFAC) at Cal State, Fullerton, close to Richard Nixon’s childhood home. Miller presented an award to `Deep Throat,’ Mark Felt, just after the keynote speech by her attorney, Floyd Abrams, who also defended The Times in the Pentagon Papers case, when the paper was somewhat at odds with a Republican Administration, rather than carrying water for one.

Deep Throat ~= Batman

Both Abrams and Miller attempted to equate her with Woodward, Bernstein and Felt as a courageous defender of the First Amendment. Both fell short. Felt’s grandson, Nick Jones, who accepted the award on behalf of his grandfather, did much better with a different equation.
Jones said nothing of Miller, but drew his own analogy, comparing his grandfather to Batman. Both were defenders of justice, Jones said, both “come and go in the night,” both were “crime fighters,” though both had detractors who might think otherwise… and both could be described by a line from the Batman video Jones had recently watched: “It’s not who I am underneath, but what I do that defines me.”

The same could be said of Miller, but with much more damning implications.

Attempted Preemptive Rehabilitation

Abrams, in classic lawyer mode, made the best case for his client’s conduct, with no attempt to reflect on the vast difference between exposing and promoting government secrets, lies and slanders. He argued that privilege could not be only for good information, and blasted unnamed blogs as “vile beyond words” in their criticism of his client.

Miller, in the process of praising Mark Felt, sought to merge herself with him, in an act of innocence by association.

“I would like to thank Woodward and Berstein,” Miller said toward the end of her remarks, adding that “Woodward offered to take my place in jail,” and that they understood “the issue at stake, to protect a source, that trumps political affiliation”-as if partisan politics were the issue, rather than systemic abuse of government power.

Miller’s performance was enabled by CFAC Executive Director Peter Sheer, who on October 4, after Miller was released, wrote that Miller “just can’t get a break,” and laid out a detailed argument in her defense, concluding that “Instead of assuming only the worst about Miller, it’s time she was given the benefit of the doubt. Her 85 days in jail have earned her at least that much.”

Unfortunately, at CFAC’s conference, the “benefit of the doubt” translated into a free pass, instead of the starting point for what could have been an invaluable debate-a debate going all the way back to first principles and the fundamental reasons for valuing a free press.

“Whatever criticisms we might have heard,” Sheer said, in introducing Miller, “The key thing is that Judy Miller was willing to go to jail for 85 days for a principle. And for this I am very grateful and very thankful.”

Miller Speaks

Miller, in turn, said she was “honored that Peter Sheer asked me to present this award.” Miller’s attendance was first announced via email just days in advance of the conference.

“Without Mark Felt, there would have been no exposure of wrongdoing in high places,” Miller said.

“Without Mark Felt there would have been none of the revelations that showed what began as a third-rate burglary was really a story of corruption and malfeasance.”

“Our profession and our country owe Mark Felt, Woodward and Bernstein and the Washington Post a remarkable debt,” Miller added, before turning to a larger topic.

“I would like to talk about the indispensability of confidential sources,” because without them we would only know what “the powerful want us to know.”

“People leak information for a variety of motives,” Miller acknowledged, but “What counts,” she continued, without apparent irony, “is the truth of the information.”

“Disclosures of such information are increasingly being considered a crime,” Miller warned, and without such information, we have no idea about why and how decisions were reached. Information from confidential sources is “vital to the public’s right to know, and that is why we protect them.”

Here, Miller clearly conflated two diametrically opposed phenomena. Critical leaking raises questions about the soundness of decisionmaking, and is properly grounds for further scrutiny. But laudatory leaking has the opposite purpose. Laudatory leaking tells the public, “If you knew what I know, then you’d support what I do, so stop questioning me.”

Miller then moved on to argue for a federal shield law-which is currently under consideration, with bipartisan support, and concluded with her efforts to identify herself with Felt, Woodward and Bernstein, which ended on a rather bizarre note.

“Because Woodward and Bernstein honored their commitment, they missed a huge scoops,” Miller said. The scoop: Mark Felt’s identity as `Deep Throat.’

A Different View

In sharp contrast to Miller, Scott Armstrong, founder of the National Security Archive, warned that the prospective Federal shield law would be a dangerous step backwards, since it would contain a national security exemption, and national security is the one field in which confidential sources are most important. Without them, virtually no investigative reporting is possible, Armstrong explained, both in a panel session, and in informal discussions with various participants. While others pointed out that a federal shield law would eliminate differences between different federal circuits, each of which is ruled by its own case law, Armstrong’s objection appears to be fundamental.

Armstrong has been a leading figure in an ongoing monthly dialogue between the national security establishment and the journalists who cover them, and reports a surprisingly high degree of mutual agreement on the need for information flow that is technically illegal, provided that information on sources and methods is held back. Armstrong draws a sharp distinction between those involved in national security, and those involved in law enforcement, who could be greatly empowered to disrupt existing patterns of communication in the shield law is passed with a broad exemption.

Armstrong was talking simple, realworld nuts-and-bolts. If the CFAC conference was not set up to properly hash out such a relatively straight-forward issue, what chance did the larger issues have?

Abrams Speaks

In his keynote address, Floyd Abrams delivered a combination of tight legal argument and sweeping generalizations. In addition to accusing unnamed blogs of being “vile beyond words” during his speech, Abrams concluded the question and answer session lamenting “the level of bile… the level of personal cruelty… the level of near madness” directed against Miller. Yet, he never seriously addressed the reasons why many hold Miller in contempt, simply waving them off as having to do with her earlier work. In effect, Abrams pretended there were no connection between Miller’s false, propagandistic reporting on Iraq’s non-existent weapons of mass destruction, and her involvement-however tangential or stillborn-in the counter-attack on Joseph Wilson for exposing part of that lie. At the same time, it was insisted that prosecutor Fitzgerald’s actions had to be viewed in light of a previous legal confrontation with Miller.

By ignoring the fact that Miller had acted as a leading de facto government agent, Abrams was able to invoke to a whole legal history, and well-accepted understanding in support of Miller’s position. Key points included the fact that waivers under pressure cannot be taken at face value, and that confidential sources leaking for unsavory reasons can sue if their confidence is broken.

Yet, it seemed as if Miller could easily have written about the attempt to smear Wilson, particularly after Novack went public, without naming Libby and thus without breaking confidence. Had she done so, people might find her more credible in reclaiming the status of uncompromised journalism. By hearing only one lawyer’s brief, attendees were deprived of the opportunity to hear what could have been a highly illuminating debate exploring such inconsistencies, and raising more fundamental questions about the basic purpose of journalism and why it deserves the protection of the First Amendment.

Also On Hand–Some Attention to Blogging & The Internets

CFAC’s conference had a range of diverse and interesting sessions, including two that focused specifically on blogs and other internet resources for citizen journalism.  Most prominent was Dan Gilmore, former technology writer for the San Jose Mercury News from 1994 to 2004, and author of We the Media: Grassroots Journalism By the People. He’s involved in regional online citizen journalism at Bayosphere, which covers the San Francisco Bay Area. His presentation was interesting, amusing, inspiring, engaging and trust-enhancing. Everything that Miller and Abrams were not. If you’ve got a chance to catch him sometime, I’d definitely say check him out. Gilmore’s diaries about Abrams’ speech and Miller’s provide more detail, and a slightly different view, though I don’t find much to disagree with in what he writes.

Also on hand were Kevin Roderick from LA Oobserved and Mack Reed from LA Voice. Reed’s live diary of Abrams and Millers speech is here. Brief, but in the moment.

A Simple Truth

Perhaps the most sensible thing I heard at the conference came from the fellow serving drinks at the Friday night reception. Not out of nowhere, it turned out. He had majored in Communications. He just wanted to know why the Times hadn’t fired Miller long ago. Why would anyone trust a paper that published a known liar?

And why wasn’t that perspective built into the foundations of the discussion at CFAC’s conference?

What I Learned–Again

In short, what this conference showed me was something akin to the criticism Kos voiced about pro-choice groups supporting Republicans. The situation we are in today is not the traditional situation of partisan politics in America. The GOP really is interested in putting an end to the two-party system, along with a lot more of the Enlightenment tradition-science, democracy, you name it, they’re agin’ it. This doesn’t mean that we should do everything possible to stop the GOP. I’m no advocate of assassination. It doesn’t even mean that we should do everything the GOP would do or has done. No stealing of presidential elections, either, in my book. But it does mean some sensible adjustments to a very unsensible period of time.

We have to focus on the foundations of what we’re fighting for, and not sacrifice them for the sake of some filigreed detail. The foundation is (1) Government by informed consent of the governed (it can’t be true consent if its not informed.) (2) Separation of powers, to ensure against overt tyranny and covert manipulation. (3) A free press as part of the grand structure of separation of powers. (There’s a reason it’s called the “fourth branch of government.”) Miller has been operating for quite some time in violation of all this. But we cannot fairly and fully explain what is wrong with her behavior without at least tacitly recognizing that much of what is “normal” in our professional media today is also compromised, if not as blatantly.

There is a growing need and role for advocacy journalism-journalism in the 19th Century or European models-which is not in any way inferior to so-called “objective journalism.” See, for example, the corporate media’s “objective” reporting that gives roughly equal treatment to the scientific consensus on global warming and the PR campaign of global oil, which has not produced a single peer-reviewed paper contradicting global warming, according to a study by Naomi Oreskes published in Science last December.

The point here is more general than just one issue, because the situation with global warming is indicative of the situation in general: where one side is lies, and the other is truth, “balance” itself is a lie. The only sane response is to be “unbalanced,” just as Martin Luther King once called on us to be maladjusted:

I’m about convinced now that there is need for a new organization in our world. The International Association for the Advancement of Creative Maladjustment–men and women who will be as maladjusted as the prophet Amos. Who in the midst of the injustices of his day could cry out in words that echo across the centuries, “Let justice roll down like waters and righteousness like a mighty stream.” As maladjusted as Abraham Lincoln who had the vision to see that this nation would not survive half-slave and half-free. As maladjusted as Thomas Jefferson who in the midst of an age amazingly adjusted to slavery would scratch across the pages of history words lifted to cosmic proportions, “We know these truths to be self-evident, that all men are created equal, that they are endowed by their creator certain unalienable rights” that among these are “life, liberty, and the pursuit of happiness.” As maladjusted as Jesus of Nazareth who could say to the men and women of his day, “Love your enemies, bless them that curse you. Pray for them that despitefully use you.” Through such maladjustment, I believe that we will be able to emerge from the bleak and desolate midnight of man’s inhumanity to man into the bright and glittering daybreak of freedom and justice. My faith is that somehow this problem will be solved.