Breaching the barrier: Christy Hardin Smith on reporters' privilege

FireDogLake's Christy Hardin Smith had an excellent and highly educational post up this past Tuesday tackling Judy Miller, former journalist for The New York Times. You'll recall that Miller wrote a number of pieces that fueled the run-up to the Iraq War, based on information that was inadequate; if you don't recall Miller, you'll be reminded by this evening's news as she will take the stand today in the U.S. vs. Libby trial. Christy's post serves as an excellent backgrounder on Miller prior to her testimony today.

The concept of reporters' privilege has been discussed extensively because of Miller's jailing for refusing to testify to the federal Grand Jury investigating the outing of CIA operative Valerie Plame. Miller claimed reporters' privilege – a subset of the First Amendment protections of free speech – as well as a lack of release by her source, Lewis “Scooter” Libby. (Libby has been a target of of umbrella investigation, and is being prosecuted for crimes committed in the course of the investigation (5 counts of perjury, false statements and obstruction). Miller met with Libby several times prior to the discovery of Plame's outing, during which Libby disclosed Plame's identity and employment to Miller. While Miller never wrote about Plame, she maintained she had reporters' privilege and refused to testify about Libby's disclosures, ultimately going to jail for contempt of court until she received a release from Libby to testify.

My personal concern about Miller is that Miller claims a martyrhood for the cause of reporters' privilege. Miller conveniently ignored in her drama queen pleas for reporters’ privilege these important points:

• There was no privilege found by the DC Circuit Court for testifying in front of a Grand Jury investigating an underlying crime; this should be distinguished from testifying in front of a regular jury;

• There was no privilege found by the U.S. Supreme Court in Branzburg v. Hayes, that allows reporters who witness a crime to report on the crime but not testify about it. Reporters are beneficiaries of the reporting at the public’s expense, where they refuse to testify about a crime committed in their presence; this should be clearly distinguished from whistle blowing.

The DC Circuit Court of Appeals took great pains to explore this matter after Miller was jailed, to the tune of an 83-page decision. It’s clear that the court saw something that was clearly a crime in the course of its review [note the number of redacted pages in the decision, to conceal classified content that the court assessed], and nothing to support Miller’s claim of privilege.

Miller tries so hard to justify her work, which in turn justified a fraudulent war; this cannot be seen in the same light as any journalist/editor to whom Daniel Ellsberg leaked the Pentagon Papers. One furthered a crime and might have done so for Libby et al, the other worked to stop a war prosecuted illegally. Apples, oranges.

Having read Miller’s apologetics in the NYT (actually rushed out and bought a hardcopy, can't believe I spent hard earned money on it), I can’t help but wonder what the hell is wrong with Miller’s head. She wrote most of her explainer as if she wasn’t there, as if she was a detached observer watching a Miller-like clone interacting with Libby. Would love to have FireDogLake co-contributor and psychologist Pachacutec give her a thorough review for this reason while he is on site at Prettyman and in followup after her testimony.

Ultimately, Miller caused serious damage to the NYT, her coverage of the run-up to the Iraq War was so flawed, her persistent lack of discipline making it clear that the editorial staff had lost control -- and this, on the heels of the Jason Blair scandal as well. As a professional who must rely on media for research, I personally cannot use the NYT as a source; I cannot trust that their content is adequately vetted or that the editorial staff has pushed back at its journalists firmly for accurate and detailed reporting. It is for reasons like these, the failure of traditional media to be an effective, honest broker, and the persistent abuse of the public's trust, that citizen journalism realized in blogging – including the piece by Christy Hardin Smith on Judy Miller, and Marcy Wheeler's live blogging of the U.S. v. Libby trial – becomes a credible alternative to traditional media.