Legal Analysts Critical of N.Y. Times Reporter's Stance in Leak Probe

[Pirate Smile]

Legal Analysts Critical of N.Y. Times Reporter's Stance in Leak Probe

By Howard Kurtz
Washington Post Staff Writer
Wednesday, July 13, 2005; Page A07

Tim Russert of NBC, Walter Pincus and Glenn Kessler of The Washington Post and Matthew Cooper of Time were all subpoenaed in the Valerie Plame leak investigation. But only New York Times reporter Judith Miller is in jail today.

Although many media advocates hail Miller's sacrifice for what she and the Times see as a bedrock journalistic principle of protecting a promise to a source, some legal analysts say her imprisonment stems from a confrontational legal strategy adopted by the Times.

Geoffrey Stone, a University of Chicago law professor, said journalists, like doctors and lawyers, are under no obligation to remain silent about a source who has waived confidentiality. "It's the source's privilege, not the reporter's," he said. "If the source doesn't want confidentiality, the reporter has no business insisting on it. . . . If it's a matter of conscience instead of a matter of law, you can do whatever you want. As a legal matter, it's absurd."

U.S. District Judge Thomas F. Hogan sent Miller to the Alexandria Detention Center last week after she refused to testify in the probe of whether Bush administration officials illegally disclosed that Plame was an undercover CIA operative. Plame's identity was revealed in a column by Robert D. Novak eight days after her husband, former ambassador Joseph C. Wilson IV, wrote an op-ed piece in the Times criticizing White House assertions about Iraq's nuclear program during the run-up to the U.S. invasion.

http://www.washingtonpost.com/wp-dyn/content/article/2005/07/12/AR2005071201402.html

[G_j]

1. do we know if Miller's source

waived confidentiality?

[Pirate Smile]

2. I don't know that we know for sure but most senior BushCo staff signed

a waiver.

"The White House directed high-level officials to sign general waivers releasing journalists from any pledge of confidentiality on the Plame matter, but Cooper said last week that such waivers "are not worth the paper they're written on" because they are inherently coercive. Cooper agreed to testify after announcing that his source had personally released him from his promise of anonymity. Miller has steadfastly refused to testify.

Earlier in the investigation, NBC and Post journalists who were subpoenaed worked out agreements with special prosecutor Patrick J. Fitzgerald to provide limited testimony in ways they said did not compromise their promises to sources. Novak and his attorney have refused to say whether he cooperated with the prosecutor.

Floyd Abrams, the veteran First Amendment lawyer who represents Miller, said the situation faced by the other reporters may have been different. But he added: "Their willingness to reach an accommodation with Mr. Fitzgerald may have been greater than Judy's."

[redqueen]

3. Wish more people could think straight...

glad Howie managed to get it right this time.

[robertpaulsen]

4. These legal analysts are missing the main point.

John Dean asserts the main point quite eloquently:

Finally, if the confidential information relates to criminal activity, the U.S. Supreme Court said in 1972 (in Branzburg vs. Hayes) that should a grand jury investigating the crime need the information, the journalist must turn it over — despite the freedom of the press guaranteed under the 1st Amendment.

No reporter can enter into an agreement that violates that law. Rather, an agreement of confidentiality is subject to it. The so-called news person's privilege, just like the attorney-client privilege or a president's executive privilege, is a qualified privilege. When a judge holds a reporter in contempt for violating the law, that judge is merely upholding the law of the land.

more...

http://www.latimes.com/news/opinion/sunday/commentary/la-op-sources6feb06,0,6080347.story?coll=la-sunday-commentary

Branzburg is the law of the land. That's why SCOTUS didn't review Miller's complaint and that's why she's in jail.