Judith Miller Goes to Jail
This is a proud but awful moment for The New York Times and its
employees. One of our reporters, Judith Miller, has decided to accept a
jail sentence rather than testify before a grand jury about one of her
confidential sources. Ms. Miller has taken a path that will be lonely
and painful for her and her family and friends. We wish she did not
have to choose it, but we are certain she did the right thing.
She is surrendering her liberty in defense of a greater liberty,
granted to a free press by the founding fathers so journalists can work
on behalf of the public without fear of regulation or retaliation from
any branch of government.
The Press and the Law
Some people - including, sadly, some of our colleagues in the news
media - have mistakenly assumed that a reporter and a news organization
place themselves above the law by rejecting a court order to testify.
Nothing could be further from the truth. When another Times reporter,
M. A. Farber, went to jail in 1978 rather than release his confidential
notes, he declared, "I have no such right and I seek none."
By accepting her sentence, Ms. Miller bowed to the authority of the
court. But she acted in the great tradition of civil disobedience that
began with this nation's founding, which holds that the common good is
best served in some instances by private citizens who are willing to
defy a legal, but unjust or unwise, order.
This tradition stretches from the Boston Tea Party to the
Underground Railroad, to the Americans who defied the McCarthy
inquisitions and to the civil rights movement. It has called forth
ordinary citizens, like Rosa Parks; government officials, like Daniel
Ellsberg and Mark Felt; and statesmen, like Martin Luther King.
Frequently, it falls to news organizations to uphold this tradition. As
Justice William O. Douglas wrote in 1972, "The press has a preferred
position in our constitutional scheme, not to enable it to make money,
not to set newsmen apart as a favored class, but to bring to
fulfillment the public's right to know."
Critics point out that even presidents must bow to the Supreme
Court. But presidents are agents of the government, sworn to enforce
the law. Journalists are private citizens, and Ms. Miller's actions are
faithful to the Constitution. She is defending the right of Americans
to get vital information from news organizations that need not fear
government retaliation - an imperative defended by the 49 states that
recognize a reporter's right to protect sources.
A second reporter facing a possible jail term, Matthew Cooper of
Time magazine, agreed yesterday to testify before the grand jury. Last
week, Time decided, over Mr. Cooper's protests, to release documents
demanded by the judge that revealed his confidential sources. We were
deeply disappointed by that decision.
We do not see how a newspaper, magazine or television station can
support a reporter's decision to protect confidential sources even if
the potential price is lost liberty, and then hand over the notes or
documents that make the reporter's sacrifice meaningless. The point of
this struggle is to make sure that people with critical information can
feel confident that if they speak to a reporter on the condition of
anonymity, their identities will be protected. No journalist's promise
will be worth much if the employer that stands behind him or her is
prepared to undercut such a vow of secrecy.
Protecting a Reporter's Sources
Most readers understand a reporter's need to guarantee
confidentiality to a source. Before he went to jail, Mr. Farber told
the court that if he gave up documents that revealed the names of the
people he had promised anonymity, "I will have given notice that the
nation's premier newspaper is no longer available to those men and
women who would seek it out - or who would respond to it - to talk
freely and without fear."
While The Times has gone to great lengths lately to make sure that
the use of anonymous sources is limited, there is no way to eliminate
them. The most important articles tend to be the ones that upset people
in high places, and many could not be reported if those who risked
their jobs or even their liberty to talk to reporters knew that they
might be identified the next day. In the larger sense, revealing
government wrongdoing advances the rule of law, especially at a time of
increased government secrecy.
It is for these reasons that most states have shield laws that
protect reporters' rights to conceal their sources. Those laws need to
be reviewed and strengthened, even as members of Congress continue to
work to pass a federal shield law. But at this moment, there is no
statute that protects Judith Miller when she defies a federal trial
judge's order to reveal who told her what about Valerie Plame Wilson's
identity as an undercover C.I.A. operative.
Ms. Miller understands this perfectly, and she accepts the
consequences with full respect for the court. We hope that her
sacrifice will alert the nation to the need to protect the basic tools
reporters use in doing their most critical work.
To be frank, this is far from an ideal case. We would not have
wanted our reporter to give up her liberty over a situation whose
details are so complicated and muddy. But history is very seldom kind
enough to provide the ideal venue for a principled stand. Ms. Miller is
going to jail over an article that she never wrote, yet she has been
unwavering in her determination to protect the people with whom she had
spoken on the promise of confidentiality.
The Plame Story
The case involves an article by the syndicated columnist Robert
Novak, who revealed that Joseph Wilson, a retired career diplomat, was
married to an undercover C.I.A. officer Mr. Novak identified by using
her maiden name, Valerie Plame. Mr. Wilson had been asked by the C.I.A.
to investigate whether Saddam Hussein in Iraq was trying to buy uranium
from Niger that could be used for making nuclear weapons. Mr. Wilson
found no evidence of that, and he later wrote an Op-Ed article for The
Times saying he believed that the Bush administration had
misrepresented the facts.
It seemed very possible that someone at the White House had told
Mr. Novak about Ms. Plame to undermine Mr. Wilson's credibility and
send a chilling signal to other officials who might be inclined to
speak out against the administration's Iraq policy. At the time, this
page said that if those were indeed the circumstances, the leak had
been "an egregious abuse of power." We urged the Justice Department to
investigate. But we warned then that the inquiry should not degenerate
into an attempt to compel journalists to reveal their sources.
We mainly had Mr. Novak in mind then, but Mr. Novak remains both
free and mum about what he has or has not told the grand jury looking
into the leak. Like almost everyone, we are baffled by his public
posture. All we know now is that Mr. Novak - who early on expressed the
opinion that no journalists who bowed to court pressure to betray
sources could hold up their heads in Washington - has offered no public
support to the colleague who is going to jail while he remains at
liberty.
Ms. Miller did not write an article about Ms. Plame, but the
prosecutor, Patrick Fitzgerald, wants to know whether anyone in
government told her about Mr. Wilson's wife and her secret job. The
inquiry has been conducted with such secrecy that it is hard to know
exactly what Mr. Fitzgerald thinks Ms. Miller can tell him, or what
argument he offered to convince the court that his need to hear her
testimony outweighs the First Amendment.
What we do know is that if Ms. Miller testifies, it may be
immeasurably harder in the future to persuade a frightened government
employee to talk about malfeasance in high places, or a worried worker
to reveal corporate crimes. The shroud of secrecy thrown over this case
by the prosecutor and the judge, an egregious denial of due process,
only makes it more urgent to take a stand.
Mr. Fitzgerald drove that point home chillingly when he said the
authorities "can't have 50,000 journalists" making decisions about
whether to reveal sources' names and that the government had a right to
impose its judgment. But that's not what the founders had in mind in
writing the First Amendment. In 1971, our colleague James Reston cited
James Madison's admonition about a free press in explaining why The
Times had first defied the Nixon administration's demand to stop
publishing the Pentagon Papers and then fought a court's order to cease
publication. "Among those principles deemed sacred in America," Madison
wrote, "among those sacred rights considered as forming the bulwark of
their liberty, which the government contemplates with awful reverence
and would approach only with the most cautious circumspection, there is
no one of which the importance is more deeply impressed on the public
mind than the liberty of the press."
Mr. Fitzgerald's attempts to interfere with the rights of a free
press while refusing to disclose his reasons for doing so, when he
can't even say whether a crime has been committed, have exhibited
neither reverence nor cautious circumspection. It would compound the
tragedy if his actions emboldened more prosecutors to trample on a free
press.
Our Bottom Line
Responsible journalists recognize that press freedoms are not
absolute and must be exercised responsibly. This newspaper will not,
for example, print the details of American troop movements in advance
of a battle, because publication would endanger lives and national
security. But these limits cannot be dictated by the whim of a branch
of government, especially behind a screen of secrecy.
Indeed, the founders warned against any attempt to have the
government set limits on a free press, under any conditions. "However
desirable those measures might be which might correct without enslaving
the press, they have never yet been devised in America," Madison wrote.
Journalists talk about these issues a great deal, and they can seem
abstract. The test comes when a colleague is being marched off to jail
for doing nothing more than the job our readers expected of her, and of
the rest of us. The Times has been in these fights before, beginning in
1857, when a journalist named J. W. Simonton wrote an editorial about
bribery in Congress and was held in contempt by the House of
Representatives for 19 days when he refused to reveal his sources. In
the end, Mr. Simonton kept faith, and the corrupt congressmen resigned.
All of our battles have not had equally happy endings. But each time,
whether we win or we lose, we remain convinced that the public wins in
the long run and that what is at stake is nothing less than our
society's perpetual bottom line: the citizens control the government in
a democracy.
We stand with Ms. Miller and thank her for taking on that fight for the rest of us.
I did not see The Fantastic Four this weekend. Yes, despite the largely mediocre reviews, I want to see it because the fire guy is H-O-T... and not in just a 'I'm on fire' way! (See this week's Us Weekly magazine if you somehow need proof! And no, not online. You have to go buy it!)
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