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Reams of speculation spew out of journalism’s maw, yet nobody in the press has any hard information about what special prosecutor Patrick Fitzgerald is up to—aside from squeezing reporters to give up their sources. He has already put one reporter in jail for something the law books call “civil contempt.” In American history books, it’s called honorable civil disobedience. In this reporter’s view, more such resistance is needed at a time when an increasingly imperial presidency is trying to tar and diminish the notion of a free and independent press.
Fitzgerald’s assignment is to find out which person or persons in the White House acted maliciously to reveal the identity of CIA operative Valerie Plame. The “outing”—which appeared to be a serious criminal violation of federal law, particularly in wartime—was aimed at discrediting Joseph Wilson, Plame’s husband and a former U.S. ambassador in Africa, who had challenged the Bush administration’s assertion that Iraq had sought to buy uranium from Niger for nuclear weapons. This claim was one of the White House’s major rationales for invading Iraq. It was later shown to be based on forged documents.
All of this happened two years ago. On July 14, 2003, syndicated columnist Robert Novak, a Republican defender and conduit, wrote that two senior administration sources had told him Valerie Plame was a CIA “operative” who had something to do with her husband’s public statements. Two White House officials—I. Lewis Libby, vice president Dick Cheney’s chief of staff, and Karl Rove, President Bush’s political adviser as well as his deputy chief of staff—have acknowledged that they talked with reporters about Wilson and his CIA wife, but they have denied any wrongdoing. It is not known if these are the two sources Novak cited in his “outing” column.
Novak refuses to talk about the case and may have cooperated with the prosecutor to avoid punishment. Other newspeople, who reported on the matter after Novak’s column appeared, have also cooperated. Judith Miller of The New York Times, who did preliminary reporting but ended up not writing a story, has rebuffed the prosecutor. She and her paper have cited a free press’s need to protect confidential sources. Amazingly, Miller is the only person punished so far in a case where the suspect act—breaking the cover of a CIA intelligence agent—was committed by government officials and a cooperating journalist, Robert Novak.
Since Novak won’t talk and the prosecutor won’t talk and has also sealed all the key documents, we are left at this point with nothing but speculation. It’s possible that Fitzgerald could be preparing a conspiracy case against all in the White House who bandied Plame’s CIA position to journalists. It’s also possible he could be preparing to announce that no crime at all was committed since he could not prove that the namers knew she was an “undercover” agent. The federal law has loopholes; it says, for example, that the namers must “knowingly” reveal the agent’s identity.
One can only hope that Fitzgerald, who has a strong reputation for being politically unbiased and exceedingly thorough, will explain his entire process to the public when the case concludes. Technically, he does not have to file a final report. Not to do so, however, could turn him into a figure of ridicule.
Yet, despite the fog of guessing and surmise that envelops this case, some truths have emerged with unusual clarity. One is that the story, however the press plays it at the moment, is not about individuals. It’s much larger than that. Reporters who resist pressures to betray good journalism are not martyrs or heroes. They’re doing their job and doing it well—as others have before them. It’s our job to encourage and support them. Here are some other truths that have emerged from the murk of Squealgate:
It’s open season on the press. Kneeling and cowering are useless as a response strategy. Standing tall on good-journalism principles is the only option. Sometimes that means fines will be imposed and reporters will go to jail.
This controversy is not about the press’s being “above the law.” That’s a red-herring insult offered up by imperial White Houses, rationalizing prosecutors and judges—and by the Time Inc. editor in chief, who caved a week ago and gave up his reporter’s notes to the prosecutor. The press knows its privileges are not absolute. What the press doesn’t seem to have fully absorbed is that the history of our country confirms that these privileges weren’t specifically recognized at the birth of our nation, are not assured by the Constitution, and will always have to be fought for by the press itself as a check on government and other powerful institutions.
The interests of the reporter and his or her employer may not be identical. When prosecutors or defense attorneys seek to compel reporters to give up sources’ names or tapes or other materials, the news company may wish to comply with subpoenas to avoid fines or stave off publicity it considers detrimental to its profits. The reporter will almost always have the opposite wish: to keep his word to his sources and keep himself and his company independent from outside interference in the news-gathering process. (Exhibit A: Time Inc. took control of Matthew Cooper’s reporting materials and turned them over to prosecutor Stewart. Will any useful source talk to Cooper again? To Time Inc. again?)
Reporters often think of themselves as powerless to challenge an employer’s decision, but this is nonsense. Did Cooper voluntarily turn over his notes to his employer? We don’t know. What we do know is that in some past cases reporters have recognized the dichotomy between reporter and employer and retained physical control of their materials. In a Supreme Court case in the late ’60s and early ’70s involving the Black Panthers, New York Times reporter Earl Caldwell retained his own attorney (Anthony Amsterdam) to avoid having to give up sources or testify before a grand jury.
Some commentators have argued that reporters should only promise confidentiality to altruists, people who don’t have an agenda. In other words, only to good guys—not to bad guys with impure motives. This too is nonsense. Virtually every leaker has an agenda. What should a reporter do if an attorney representing an alleged felon wants to pass you evidence—anonymously—about prosecutorial abuse in the case? Do you blow him off, refuse his information? Isn’t it the press’s obligation to report abuses in the justice system, whoever commits them? Remember, in the real world, there’s a decided dearth of saints. It’s worth noting that most of the stories that came after the White House/Novak outing of Valerie Plame pointed directly at the motives of the leakers.
The question the public has to decide is whether or not it wants investigative journalism—serious journalism that exposes corruption in high places. The question for journalists is whether they are willing to accept the possible sacrifices involved in such reporting, such as going to jail. If we aren’t—individually and as a professional community—then it seems to me we are walking on the thinnest of ice.
Where will the protections for our work come from if we aren’t willing to stand up front and take the heat? And not ask for special treatment, such as home confinement instead of jail? From my vantage point, that’s the only way we’re ever going to garner public support for what we do. There’s a lot of talk about the need for a federal shield law, since 49 of 50 states have them. It’s a nice idea. But what if the votes for a federal statute aren’t there? Do we surrender and go into hiding until the votes are found?
This story is a long way from being over.