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The five-count Oct. 28 federal grand jury indictment of I. Lewis "Scooter" Libby-Vice President Dick Cheney's chief of staff and special assistant to President George W. Bush-left many questions still unanswered. The indictment was for perjury, false statements and obstruction of justice rather than the underlying matter of "outing" a covert CIA officer-presumably in order to discredit her husband's New York Times op-ed piece challenging a claim President Bush had made to help justify the Iraq invasion. But, for the media, this was far less important than the role that New York Times reporter Judith Miller played (or, perhaps, shouldn't have played) in the proceedings.

From the beginning, I have been uneasy about Miller serving as the current poster girl for the principle of journalistic confidentiality. Under very different circumstances, I felt the same way about Marie Torrツ, the New York Herald Tribune entertainment and gossip columnist whose 1958 case first raised the First Amendment argument as a protection for such confidentiality. Torrツ, whose testimony was demanded in a libel suit to which she was not a party, lost when the Supreme Court refused to review then-Circuit Judge Potter Stewart's ruling that no such privilege existed under the First Amendment.1

The principle was important then, and it's at least as important now. But having the banner carried by Miller isn't the best way to make that argument. Miller, who has been labeled as "divisive" in her own newsroom, was-in the best (for her) of all possible interpretations-carelessly (or even ideologically) accepting of White House arguments about whether Iraq had weapons of mass destruction2 and this has led to suspicions in some quarters that she is too close to the Bush administration.

Among the still unanswered questions are these: Was Miller's testimony about Libby really crucial to the grand jury proceeding, since her conversations with Libby weren't even mentioned in the Oct. 28 indictment? Why did Miller refuse to reveal Libby's name early on, when according to some accounts she had his permission to do so?3 Why did Miller not write a story about the information Libby furnished her? Was her closeness to Cheney a factor? What was the specific purpose of the White House in "outing" Valerie Plame Wilson, the CIA officer? Perhaps most intriguing, why was any of this necessary after story-breaking columnist Robert Novak testified before the grand jury? Why did Novak seemingly get a free pass, while prosecutor Patrick Fitzgerald went after Miller and Matthew Cooper (of Time magazine) with a vengeance?

Some of those answers are certainly in the legal and political realms, but some seem to have ethical dimensions as well. Stay tuned...

While we're waiting for the rest of the story to come to light, permit me two related observations:

By 1972, Potter Stewart had been elevated to the Supreme Court and wrote a strong dissent in Branzburg v. Hayes4, one which has since been used to support a First Amendment basis for privilege in many cases (but which has not worked in situations involving grand juries, which were the bodies demanding that reporters supply the names of confidential sources in the three cases that were combined in that decision). Stewart obviously came to see that, in many instances, society was better off if journalists could cite the First Amendment to protect their sources. Under the test proposed by Stewart in Branzburg, Torrツ would probably have been given First Amendment protection, even though the subject of her story (entertainer Judy Garland) wasn't all that important to the welfare of the republic. And so would Miller, even though she never wrote a story about the information in question.

And then there's at least one major irony in the Miller case. An Oct. 22, 2005 story about Miller's post-prison grand jury appearance attributed to "two lawyers familiar with the investigation" that Miller and Libby had met as early as June, 2003, and that Miller originally failed to mention this in her grand jury testimony. The story added: "The lawyers spoke on condition of anonymity because of the secrecy of the grand-jury investigation and the prosecutor's desire to keep his communications with lawyers and witnesses confidential."5

Isn't it a bit of an ethical non sequitur when the legal system tries to impose the principle of confidentiality on communications between a special prosecutor and various lawyers and witnesses, in a case that involves, among other things, attempts to coerce reporters into breaking their promises of confidentiality to sources? But doesn't it also greatly weaken the ethical stance in defense of journalistic confidentiality when sources are protected for reasons that aren't made clear and which, arguably, may go beyond informing the citizens about their government?

Endnotes

1 259 F. 2d 545, 2d Cir., 1956; certiorari denied, 358 U.S. 910, 1958.

2 See, among other sources, Van Natta Jr., Don, Adam Liptak and Clifford J. Levy, "N.Y.Times reporter, paper break silence in leak probe," The New York Times, Oct. 16, 2005, retrieved Oct. 17, 2005 from http:seattletimes.nwsource.comnationworld2002564039_miller16.html. It was this article that referred to Miller as "a divisive figure" in the Times newsroom.

3 Ibid.

4 408 U.S. 665 (1972).

5 "Prosecutors knew about key meeting with Times reporter before Miller testified," The Seattle Times, Oct. 22, 2005, retrieved Oct. 22, 2005 from http:seattletimes.nwsource.comnationworld2002576499_leak22.html

*David Gordon has served as faculty member and administrator in several journalism schools and departments, most recently in the Univ. of Wisconsin-Eau Claire. He has been following issues of source confidentiality in the pages of Media Ethics for the past several issues.

The above article was published in Media Ethics, Fall 2005 (17:1),pp.8,19-20.