quote: The Secret Trial of Judith Miller Will the Times reporter have her ears cut off? Will you? Michael McMenamin
Judith Miller—The New York Times reporter now in federal prison for refusing to burn a source before a federal grand jury investigating an executive branch leak of a former covert CIA officer's identity—is a hero to her fellow journalists, a martyr to the media's constitutional mission of serving as a restraint on government abuse. In contrast, the public doesn't seem to give a damn. Why should journalists have special privileges before a grand jury which ordinary citizens do not? Why should non-journalists care? Why indeed.
One answer is that many federal courts and, in a limited way, even the Supreme Court have held that the First Amendment does give journalists special testimonial privileges before a grand jury. Not a lot. But some. A second answer is that 49 of the 50 states either by legislation (31 states) or judicial decision (18 states) have reporter shield laws of varying strength. A similar state level consensus led the Supreme Court in 1996 to recognize a federal common law testimonial privilege for psychotherapists and social workers much as it had earlier done for lawyers and married couples. On Tuesday, the American Bar Association endorsed federal statutory protections for journalists.
The First Amendment issue in Miller's case has been more widely reported than the federal common law privilege, but both are key to understanding why Judith Miller's conviction and imprisonment has set a new and ominous precedent which can and will be used against non-journalists as well.
Testimonial privileges require a court to weigh the government's evidence as to why they need her testimony. Yet Judith Miller was tried, convicted and sentenced to prison based exclusively upon written evidence from witnesses whose identities and testimony were kept secret from her and her lawyers. They were given no opportunity to defend her against, question, or rebut the secret evidence the courts relied upon exclusively in convicting her. Indeed, a full eight pages of the D.C. Court of Appeals decision discussing and analyzing this secret evidence was redacted from the published opinion.
Judith Miler is unique, the first American ever to be sent to jail based on facts she never saw and a federal appellate opinion she was not permitted to read. She won't be the last. Make no mistake: This will happen again and again whenever a case involves "national security,""the war on terror," or any combination thereof. This is too big a weapon for the executive branch to ignore, especially since it was fashioned by the most prestigious of the U.S. Courts of Appeals and approved by the Supreme Court. Let's face it. If they can do it to a reporter for The New York Times, they sure as hell can do it to anyone else.
Is this article accurate in its assessment of the facts? Isn't it cause to worry when someone isn't given a chance to defend themselves against accusations?
Posts: 13123 | Registered: Feb 2002
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It sure scares the heck out of me. I'd like to hear the legal minds of hatrack discuss the facts of this case. Is it as bad a precedent as it seems? Are we giving up our most basic rights lately without a whimper? What's up with this?
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This case confuses me. I'm sure I don't have the full picture here. Wasn't she one of two reporters who was told that the ambassador's wife worked for the CIA, and isn't she the one who chose not to print it? And the guy who did print it was not jailed or anything, because he cut some sort of deal? (For what, exactly?)
Do I have my facts confused? (Please forgive me in advance, but if I do, I will edit the portions of this post which make me look the most stupid.)
It seems, then, that she's the one who showed some journalistic responsibility, and she should not be punished. (Although I understand that this is not precisely what she is being punished for.)
I don't think journalist-source confidentiality should be absolute. I don't think it should extend to endangering lives with no perceivable benefit to our society--to cases where publishing is not exercising the press's role as watchdog, but merely selling newspapers with sizzling scoops. The potential for abuse of this confidentiality is too great. Reporters can make stuff up and claim that anonymous sources told them. Reporters lately don't have the most shining record--see the NYT for examples.
I also don't understand how this suggests it is this administration that is persecuting her, in the name of national security. I'm guessing her source, if known, will be an embarrassment to the Bush administration.
Like I said, I'm sure I have the pieces wrong here. But it's not because I'm an ignoramus--I have read several articles and editorials on the situation, but I must be misunderstanding something pretty fundamental here.
But all that aside, assuming this article is accurate, it worried me very much. But I have been arguing for years that we should all be terrified about the rights we have been giving up in the name of safety.
Posts: 13680 | Registered: Mar 2002
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quote:This case confuses me. I'm sure I don't have the full picture here. Wasn't she one of two reporters who was told that the ambassador's wife worked for the CIA, and isn't she the one who chose not to print it? And the guy who did print it was not jailed or anything, because he cut some sort of deal? (For what, exactly?)
She was one of three, actually. One of them testified (with permission of the source), one of them may or may not have testified (grand jury rules are secret), and one refused a court order to testify - something you or I are subject to in general, unless it's about our wives or possibly about a client once I get one.
Assuming the article is accurate, it worries me very much, too. But, in general, neither you nor I would be entitled to see confidential evidence developed about an investigation just because we're fighting a subpoena. So I'm not sure how accurate this article is.
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I thought she was charged with contempt of court. Can you be thrown in jail without trial for that? If you are summoned and refuse to appear...don't they arrest you.
Do you get to have a trial for that?
Seems like you should.
They can't just hold her until she complies, can they?
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