January 2, 2004
From the desk of Jane Galt:The Plame Game
All the lawyers I know think the idea that journalists should protect their sources even when ordered to by a judge is risible--when a judge says jump, they argue, the only correct response is "how high?" The journalists I know, on the other hand, seem to believe that the judges don't even have the right to ask the question--it is within the magisterial authority of the journalist and their editor to decide what hits print, and no judge has a right to "stomp all over hte first amendment", as I heard one person argue about the Wen Ho Lee leak case.
Myself, I'm more ambivalent. If journalists out leaks, it will undoubtedly have a chilling effect on potential leakers. It's no good to say we're only going to force them to expose the sorts of leaks that have no redeeming social importance--leakers have no way of telling, in advance, whether their leak will be adjudged important enough to rate confidentiality. Leakers are often risking a great deal, from their livelihood to their relationships to their lives. They will be less inclined to do so if they have any doubt that the journalistic shield will protect them. And leaks often do give us information that we want and need, especially about what those in power are getting up to when no one's watching.
On the other hand, anonymous leaks undermine one of the fundamental principles of liberal order: that people should be able to judge the credibility of the source of information for themselves. And they can be exceedingly dangerous. Anonymous leakers can use their anonymity to carry out hatchet campaigns against rivals; they can damage national security; they can cost lives. We need to have some way to rein that power in.
But damned if I know what it is.
Michael Kinsley tries to split the baby in a good piece on the Valerie Plame leaks that slams the New York Times for hypocrisy--fighting for the journalistic confidentiality that is protecting the leakers, while simultaneously excoriating the Bush administration for not finding and punishing them:
It is no solution to say, as some do, that it is a journalist's job to protect the identity of his or her sources and it is the government's job to expose them. This isn't a game. There is no invisible hand to guarantee that the struggle of competing forces will achieve the correct balance. Journalists ought to be concerned about national security, and government officials ought to be concerned about the First Amendment. When these interests conflict, those involved have an obligation to strike the balance for themselves.The purpose of protecting the identity of leakers is to encourage future leaks. Leaks to journalists, and fear of leaks, can be an important restraint on misbehavior by powerful institutions and people. This serves the public interest. But there is no public interest in leaks that harm national security, or leaks that violate the law, or leaks intended to harm blameless individuals. There is no reason to want more of these kinds of leaks. So there is no reason to protect the identity of such bad-faith leakers.
From a distance, it smells as if the national-security hoop-de-do about the Valerie Plame leak is exaggerated. On the other hand, the personal malevolence and Borgia-like scheming behind the leak is impressive. I am not sure where I would come out on protecting the source of this leak. But it doesn't matter where I would come out because I don't know who the leakers were. Novak and others do know. They should either tell us who or tell us why not.
It's a great piece. But I'm afraid that I still don't know what the answer is.
Posted by Jane Galt at January 2, 2004 1:11 PM | TrackBack | Technorati inbound links
The First Amendment makes no distinctions among a man spouting off in a bar, blog commenters, bloggers, newspaper opinion columnists, and reporters. Therefore, there is no reasonable First Amendment case that Bob Woodward, Robert Novak, or Glenn Reynolds has any more right to refuse to testify than I or Joe Sixpack have a right to refuse to testify when subpeonaed.
There is perhaps a policy case to be made that "bona fide" journalists should be exempt from revealing sources. This has nothing to do with the First Amendment, any more than spouse-spouse, doctor-patient, or attorney-client privilege. Since such a privilege does not exist in the common law (unlike the first three), if journalists want such a privilege, they need to talk the legislature into creating one.
Who is qualified to invoke the privilege, how far it extends, and the like are then policy questions that can be settled in the legislative debate, and reopened if the inital solution is found unsatisfactory. (Note that the common-law privileges have themselves been hedged with exemptions in recent years, like doctor abuse reporting requirements and psychologist threat reporting requirements, when the traditional priviledge has been found an unsatisfactory solution.)
Regarding the Plame case, the fact that such a privilege has not been created is itself a (default) judgment on the issue of who can invoke "journalistic privilege" (no one) and how far it extends (to nothing). While journalists may object that this is not what "should" be the answer, it is the current one. A promise of confidentiality from a journalist therefore extends no further than that of any other random citizen; it ends at the courthouse door.
Leaking, in Washington, is how things get done. The notion that Bob Novak outing his informant will having a chilling effect on future leakers is difficult to understand. It's become commonplace for stories about Washington to cite anonymous sources. Some of the biggest headlines revolve around them.
It's just plain wrong. Novak should spill the beans. The reporters who touted the Jessica Lynch as hero story should tell us who their sources were. Etc. I harbor the belief that this sort of a process might surprise everyone, by revealing how much the news media creates rather than reports. By hiding behind the anonymous source, or senior government official, the reporter cannot be held accountable for what he writes, and there should be some accountability.
BTW, Joe Wilson is again defending his wife's secret identitiy in Vanity Fair by discussing their hot makeout sessions before they were married, and where they met.
But aren't leakers who put undercover operatives at risk exactly the leakers that we want to chill into silence?
I have a radical solution for the information age. Create an information branch of government. Its sole duty would be to record and disseminate, as appropriate, information. It would record information such as election results, tax returns, criminal records, professional certifications, loan histories, and property ownership. Those in charge of this branch would be elected for thier honesty and competence. They would have no legal power but the power to subpeona.
In this context, the information branch would act as a grand jury. Mr. Novak would be required to reveal his sources to the information branch. The information branch would investigate the issues as necessary and report the results. If a spy was improperly outed, the information would be sent to the justice department for prosecution. If no spy was outed, records would be sealed.
This is the information age, not the horse and buggy era of our founding fathers. The question is not if constitutional government should change to reflect our times, but how. I think that an information branch would strike the right balance between staying strong enough to beat criminals while remaining in control of the people.
Blame's a woman trained to get secrets out of men, while she's naked. And, she supplying the drugs. Other than that, most spy operations are run by guys.
Plus, Plame's husband has more than given away her cover; since he uses her connections to get jobs for himself.
As to who told what to whom, all I can say is BORING!
Carole, it's an amusing thought, but we generally hire hookers in country for that kind of operation.
hi chuck,
"BTW, Joe Wilson is again defending his wife's secret identitiy in Vanity Fair by discussing their hot makeout sessions before they were married, and where they met."
and given that her cover has already been blown by whitehouse officials, the relevance of this tidbit to meagan's post is exactly what again?
Certain "facts" in this story are only "known" via Wilson. His credibility is rather important.
"and given that her cover has already been blown by whitehouse officials,..."
Mr Novak, have you changed your mind again?
You must be him as he is the only one who knows who the leaker is, and he has previously said it was not the White House.
We, as a society, have agreed, using the available political mechanisms, that certain types of speech are not protected by the First Amendment: you may not yell "fire" in a crowded theatre, you may not run negative political advertisements close to an election, you may only raise campaign funds in certain ways, etc.
I am confident that we (again, as a democratic society) can distinguish amoung leaked information. It should be easy to determine if protecting the leaker (and leaker) is beneficial or not. If it is to the greater good that a leaker be exposed, as in the Valerie Plame affair, then it should be. Distinguishing the National benefit of outing the Valerie Plame leaker and protecting the Nixon/Watergate one, sure seems easy to me.
I'm certain one of the bright janegalt commenters can imagine situations that are much less obvious than those I've cited, but I don't suggest that my approach is a perfect solution - just one that is less absolute and black/white than the current "all leakers are protected" scheme.
"All animals are equal, but some animals are more equal than others." George Orwell
Too many of us are too often unwilling to accept personal responsibility and do the right thing because it is the right thing to do. A "serve at the pleasure of the president" employee who disagrees with the president no longer has to resign and then criticize publicly; he or she can merely "leak" concerns while appearing to remain "loyal". What used to be "the courage of my convictions" has been diminished to the "the venting of my pique". This is progress?
Meanwhile, as suggested above, the Jayson Blairs of the world's press can "make it up as they go", since their editors no longer insist on verifying their sources. Even Novak, who has a long and solid reputation, admits to "stroking" his sources by suggesting that they are more senior than they are. Therefore, we have no way of knowing the quality of the "leaked" information; or, more appropriately, the leaked accusation.
And, of course, there is no interest in leaks favorable to the administration, especially in the "left-slipstream" media. The worst aspect of these leaks, in these days of campaign finance reform, is that the leak is used to move an editorial opinion to the news pages, where it takes on the patina of objectivity. Right!
The law currently protects "whistleblowers" who report illegal activities; it does not protect their names, but rather their positions. Their names and reputations are protected by the validity of their claims. "Leakers", on the other hand, are protected by their personal cowardice and by the complicity of the press.
I plan to continue to judge the value of the information by the quality of the source: no named source, no value.
My solution would end the Plame case in an afternoon. Here are my step-by-step procedures:
1. Have a federal grand jury subpoena all the news hacks who said they received leaks on this affair, Make they repeat their stories and make them reveal their sources. If they do not, put them in jail and fine them $100,000 a day which must be paid out of their own pockets. Once they have given their sources, prosecute or fire those people named if they are guilty. If these news hacks were lying, send them to jail for perjury.
2. Prosecute Wilson for violating his CIA confidentiality contract. Sue him for $100 million dollars to cover the cost of the investigation.
3. Prosecute or sue Flame for violating federal contract rules forbidding awarding of contracts to relatives of decision makers.
Why doesn't the first amendment include a right not to speak? Surely freedom to keep one's mouth shut is every bit as important as freedom to open it.
And does it disturb anyone else that "contempt of court" is an offense for which the state can confiscate the autonomy of its citizens and the fruits of their labor?
Hey, here's an idea Judge, go screw yourself!
The real hypocrisy is on the part of the Bush administration, which has shown a willingness to arrest American citizens without due process in the name of fighting terrorism and the spread of weapons of mass destruction (just as Valerie Plame did) refuses to put Bob Novak in jail for covering up just such an offense.
In the near future, in some criminal case with no national security implications, we will hear the same conservatives who defend the traitor in the White House today, decrying the abuse of press-source confidentiality.
And Mister Dobalina Mister Bob Dobalina: "...Judge, go screw yourself!"? I know conservatives no longer believe in balanced budgets, but when did you guys give up on law and order, too? Is nation-building all you are about anymore?
epistemology: why do you believe that having a problem with the concept of "contempt of court" as an imprisonable offense is a conservative view??
Sounds more like rampant libertarianism to me, and good clear thinking too. Freedom of speech should include the freedom to refrain from speaking ... to lose one's freedom and property without due process, on the whim of a judge, is outrageous.
How far can "contempt of court" go? Try reading about the contempt citations handed out by Julius Hoffman after the Chicago Seven conspiracy trial in 1969 - and see if you aren't a little bit outraged yourself.
and given that her cover has already been blown by whitehouse officials, the relevance of this tidbit to meagan's post is exactly what again?
"A White House source", not "whitehouse officials". Novak claims to have had one source inside the White House, and another at the CIA.
Now, as for the relevance of this -- Novak's article identified Plame as a CIA agent. He gave no further personal information about her. Joe Wilson, her husband, claimed that this put his wife's life in grave danger.So what do he and his wife do?
They pose for glossy photographs and reveal details about their personal lives in a major American magazine. And, of course, Wilson himself hits the airwaves in full force, to make absolutely certain that few people in America DON'T know that his wife is a CIA operative.
The relevance of "this tidbit", as you call it, is that it reveals with perfect clarity that Joe Wilson is a liar, and that he and his wife do not feel they were endangered by the leak.
Metaphorically speaking, the leaker spray-painted "A CIA Operative Lives Here" on the Wilson-Plame household. Wilson, on the other hand, burned down the house for the insurance money and opened "Joe Wilson's My-Wife-Is-In-The-CIA Emporium (Open 24 Hours)" on the vacated lot.
Firstly, a national column is seen by a lot more people than spray paint on a house. Secondly, it wasn't just Plame's cover that was blown, it was everyone who has ever been associated with her front company, "Brewster Jennings & Associates," http://foi.missouri.edu/iipa/ciaofficials.html
This is probably going to be a pain the the butt for Bush, who probably should have dumped those responsible, even Rove, back a few months ago. On the timetables likely this thing might have too much of an impact on the election.
Firstly, a national column is seen by a lot more people than spray paint on a house. Secondly, it wasn't just Plame's cover that was blown, it was everyone who has ever been associated with her front company, "Brewster Jennings & Associates," http://foi.missouri.edu/iipa/ciaofficials.html
This is probably going to be a pain the the butt for Bush, who probably should have dumped those responsible, even Rove, back a few months ago. On the timetables likely this thing might have too much of an impact on the election.
Firstly, a national column is seen by a lot more people than spray paint on a house
And a national magazine is read by a lot more people than visit a 24-hour storefront. Thus, the use of the word "metaphorically". The point is that more people have heard Wilson publically state that his wife is in the CIA than ever heard Novak say it, because Wilson is milking this for all the political gain he can get.
This is probably going to be a pain the the butt for Bush
No, it really isn't. The story's been around or months now and is steadily losing momentum. Politically, what matters isn't the law, but the public's perception of whether harm was done. The public perception of this is that Wilson is a raging asshole and liar, and his wife feels so unthreatened by this "scandal" that she's willing to have her photograph spread all over the country. That's why the "the Bushies leaked this to hurt Wilson" story has no legs.
Yes, Democratic partisans are "outraged" by this "scandal". But that doesn't hurt Bush. What matters is the opinion of the uncomitted middle, which thus far is finding the Plame affair yawnworthy and will doubtless continue to do so.
hi dan,
"The point is that more people have heard Wilson publically state that his wife is in the CIA than ever heard Novak say it"
would you count other reporters reporting, pontificating on what novak said as a seperate category?
"The public perception of this is that Wilson is a raging asshole and liar"
i can see that this is your perception. i would be interested in the polls or links that you have in mind as evidence for this claim.
Well, there's Slate's Tim Noah, who wrote about the Plame's "extended striptease" in language that left no doubt of his less-than-lofty opinion. And this from a guy who would love to see Bush mired in a scandal.
I often wonder if there is a term for this sort of problem, one where there are two solutions, neither of them good, so a non-decision is and remains the status quo.
It's hard to have a steadfast rule. Dropping the dime on a source needs to be done on a case-by-case basis, examening the impact on the mythological greater good.
I actually did a guest blog entry awhile ago with the same title as this entry.
Have any of you ever heard Shirley Ellis' hit song, "The Name Game"...? Most of you have probably heard it before.
Well, check out my guest blog entry from last month - "The Plame Game"...
Scroll down a little in that entry to see the song that I wrote... And sing along if you like!
lol...
:-)
Maybe Im just a conspiracy addict - but what if the leaker did not leak this for any political reasons???
It is not entirely unknown in buerocratic circles for people to make snide or backhand comments out of jealousy or pure spite. Could it be that the leaker was simply miffed that he or she was not given the assignment to Niger??? If I remember correctly, Novak said that the leaker was being used to provide background information on an unrelate matter, and the Plame disclosure was merely thrown in. Would it not be the height of irony if the leaker turns out to be a
Clinton holdover?
I agree that Wilson has not conducted himself terribly well. He has nopt missed an opportunity to get air time for his wife and himself to loudly decry his predicament. Whats next - a Playboy feature on outed women in the CIA???
One other thought - just exactly how much of a secret was Plames job with the CIA??? Washington is not exactly known for its ability to keep such secrets.
Maybe Im just a conspiracy addict - but what if the leaker did not leak this for any political reasons???
It is not entirely unknown in buerocratic circles for people to make snide or backhand comments out of jealousy or pure spite. Could it be that the leaker was simply miffed that he or she was not given the assignment to Niger??? If I remember correctly, Novak said that the leaker was being used to provide background information on an unrelate matter, and the Plame disclosure was merely thrown in. Would it not be the height of irony if the leaker turns out to be a
Clinton holdover?
I agree that Wilson has not conducted himself terribly well. He has nopt missed an opportunity to get air time for his wife and himself to loudly decry his predicament. Whats next - a Playboy feature on outed women in the CIA???
One other thought - just exactly how much of a secret was Plames job with the CIA??? Washington is not exactly known for its ability to keep such secrets.
Way to go, Gojuplyr! It's inevitable that when conservatives discuss a scandal, someone will find a way to blame it on Bill Clinton.
This thread has jumped the shark.
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