Industry Floor Show

Every industry wants to get away with as much as possible.

Patients and Physicians and other health professionals have confidential communications. But suffer a work injury or claim emotional harm, or merely sign a waiver and good bye privacy.

The clergy has confidential previlege, but that too has its limits.

Lawyers and their clients have an expectation of private communications, but there are all manner of restrictions on these matters.

Nevertheless, doctors, the clergy, and lawyers constantly argue about the sanctity of these confidences and want them as broad as possible.

Why should reporters be any different?

And so, to a great extent in the papers to which leaking is a special part of their cache, the Washington Post and the NY Times and a few other papers there is gnashing of teeth and wrenting of garments over poor Judy Miller.

It's a veritable "floor display" for the industry; the way Pfizer would tote that new Viagra that also grows hair on your head.


And it is, for the most part bullshit.

In the midst of the media's love-fest for Judith Miller, 1st Amendment Martyr, it's easy to forget that Miller's questionable journalistic ethics left her in the doghouse only a year ago. Indeed, when it came to leaks, the only people busier than White House staffers last year were the denizens of the New York Times' newsroom, who fell all over themselves to excoriate Miller to competing publications.

According to a June 2004 story in New York magazine, for instance, one anonymous co-worker said: "When I see her coming, my instinct is to go the other way." By many accounts, Miller is rude, competitive and heartless, willing to pursue a hot story at any price. In at least one instance, she reportedly used the name of a source who had provided information only on condition that her name not appear.

It was Miller, more than any other reporter, who helped the White House sell its WMD-in-Iraq hokum to the American public. Relying on the repeatedly discredited Ahmad Chalabi and her carefully cultivated administration contacts, Miller wrote story after story on the supposedly imminent threat posed by Saddam Hussein.

Only problem: Her scoops relied on information provided by the very folks who were also cooking the books. But because Miller hid behind confidential sources most of the time, there was little her readers could use to evaluate their credibility. You know: "a high-level official with access to classified data." Ultimately, even the Times' "public editor" conceded the paper's coverage of Iraq had often consisted of "breathless stories built on unsubstantiated 'revelations' that, in many instances, were the anonymity-cloaked assertions of people with vested interests."

That's what makes the Judy Miller Media Hug-Fest so astonishing. Miller's refusal to testify to the grand jury investigating the leak of CIA agent Valerie Plame's name has catapulted her back into favor. Ironically, as it becomes ever more likely that she'll be jailed for contempt of court, the very affection for anonymous sources that landed Miller in hot water last year has become her route to journalistic rehabilitation. The Houston Chronicle rhapsodizes that "reporters such as Miller … are the front line in the struggle to maintain a free and independent press." Back at the New York Times, Miller's publisher, Arthur Sulzberger Jr., assures us that everyone is busy "supporting her in this difficult time."

I'm as big of fan of the 1st Amendment as anybody, but I don't buy the new Miller-as-heroine story. When Judge David Tatel concurred in the D.C. Circuit's refusal to find any absolute journalist privilege shielding Miller from testifying, he noted, sensibly, that "just as attorney-client communications 'made for the purpose of getting advice for the commission of a fraud or crime' serve no public interest and receive no privilege … neither should courts protect sources whose leaks harm national security while providing minimal benefit to public debate."

Judy Miller is no heroine. She represents the worst, the absolute bottom of the barrel worst of modern corporate journalism. She is a shill for her sources, propogating government propoganda with the cover of "authority". Only out and out plagiarism would be a greater journalistic crime, and when the subject of being the tool that leads to illegal and immoral war I'm not so sure she still isn't lower.

She wasn't exposing criminal activity or wrongdoing, she was enabling it.

The Judge Tatel opinion is significant in this case, as it is one of the few things we have that clue us in as to what Fitzgerald (aka "the Sphinx" of Prosecutors) has...and it is not pretty for those saying "no crime".

As Lawrence O'Donnell notes:

Tatel actually found that reason and experience “support recognition of a privilege for reporters’ confidential sources.” But Tatel still ordered Cooper and Miller to testify because he found that the privilege had to give way to “the gravity of the suspected crime.”

Judge Tatel’s opinion has eight blank pages in the middle of it where he discusses the secret information the prosecutor has supplied only to the judges to convince them that the testimony he is demanding is worth sending reporters to jail to get. The gravity of the suspected crime is presumably very well developed in those redacted pages. Later, Tatel refers to “[h]aving carefully scrutinized [the prosecutor’s] voluminous classified filings.”

Some of us have theorized that the prosecutor may have given up the leak case in favor of a perjury case, but Tatel still refers to it simply as a case “which involves the alleged exposure of a covert agent.” Tatel wrote a 41-page opinion in which he seemed eager to make new law -- a federal reporters’ shield law -- but in the end, he couldn’t bring himself to do it in this particular case. In his final paragraph, he says he “might have” let Cooper and Miller off the hook “[w]ere the leak at issue in this case less harmful to national security.”

Tatel’s colleagues are at least as impressed with the prosecutor’s secret filings as he is. One simply said “Special Counsel’s showing decides the case.”

All the judges who have seen the prosecutor’s secret evidence firmly believe he is pursuing a very serious crime, and they have done everything they can to help him get an indictment.

Something serious is afoot, and Judith Miller is covering it up.

And she's covering it up for the sake of the book deal and the Lifetime movie down the road.