Wednesday, March 7, 2007

The Plame case and our "press corps"

I try to be an optimist. I try to recognize points in time when things are improving. But then I also think about one of my favorite sayings from the late Molly Ivins, "Remember, it's always possible that someday we'll look back on now as being the good old days."

The Plame case and the Scooter Libby trial and conviction should be a turning point for the corporate press. And not just because blogs like FireDogLake, Emptywheel, Needlenose and The Left Coaster had the best reporting on the case itself, to the point that the full-time journalists were regularly consulting FireDogLake's coverage to keep up with what was factually going on during the trial.

In our "market system" that our economists tell us is so remarkably efficient, the press barons should look at this and say, "This is the proverbial handwriting on the wall. Anyone with an Internet link or access to a public library can log on to two or three blogs and get better coverage of these events than they'll get in our newspaper. So we'd better clean up our act and make sure that we keep a competitive advantage so advertisers will keep placing copy with us. After all, we have full-time paid journalists with years of training and experience. We have to be able to deliver better reporting on a major trial with national and international implications than a few lawyers and news junkies doing blog work part-time."

You would think. But Adam Smith never met Judith Miller. So this may just be another landmark in the story of how the American press became sadly, badly, pitifully dysfunctional and then snoozed while Dick Cheney and George Bush ground up the Constitution.

In this case, the press not only failed to pursue the story aggressively. Instead, with major journalists like Tim Russert and the legend-in-his-own-time Bob Woodward kissing up to powerful officials for the precious "access" they needed to write their worshipful tributes to Dear Leader Bush and his mighty works, they actually became part of the cover-up. They developed an institutional stake in playing the story down.

The worries about the implications for journalism that our press magnates and kept reporters hide behind aren't entirely phony.

The federal prosecutor in this case had to go after journalists about their interviews with confidential sources. Christy Hardin Smith's indirect quote from prosecutor Patrick Fitzgerald in
Fitzgerald Post-Trial Press Conference FireDogLake 03/06/07 gives his statement of the legal implications of that aspect of his investigation:

Do you believe this investigation changes the relationship with reporters? What Libby was doing was not whistleblowing — the reporters were a witness to a potential crime. There is a difference. By placing the information in this case behind reporters, there was no other way to proceed in this case but to talk with the reporters in question. (CHS notes: They cannot be used as shields for guilt or innocence of conduct, in other words.)
On a moral or theoretical basis, Fitzgerald's distinction is pretty clear. There's a qualitative difference between a leak meant to expose misconduct or criminal activity on the part of a public official, and a leak that is meant to use the reporters as the conduit for committing the crime. In this case, neither Valerie Plame or Joe Wilson had committed any legal or ethical offense. But Scooter and the others involved wanted to commit a crime to retaliate against Wilson for the political sin of showing disloyalty to Dear Leader Bush by pointing out a misleading claim on Bush's part. (Bush's deception could have been a crime in itself though that wasn't the point of Wilson's dissent.)

And for the administration official to commit the crime of exposing Plame in the way they intended to, they not only wanted the press to report it. They also wanted, as Christy wrote in her parenthetical comment, to hide behind the reporters' ethical obligation to protect confidential sources. After all, they could have leaked her name directly in a news conference. Or they could have given the name to a member of Congress or a political supporter to pass along. But those figures wouldn't have the ethical obligation or the potential legal immunity from testifying that a reporter would.

The real problem for reporters in a case like this is that there is no federal shield law defining reporters' legal protections to protect sources. And prosecutors will surely use the Plame investigation precedent to push the envelope on the information they can get.

I happen to think that Fitzgerald made the right call in the Plame case on forcing reporters to testify, for the reasons I just explained. Theyweren't facilitating a "whistle-blower", they were, as Fitzgerald somewhat delicately put it, witnesses to a potential crime. In a practical if not a legal sense, they could even be described as facilitators for a crime and a coverup in this case.

It's easy to think of hypotheticals where the precedent could be complicated. Suppose a government official has knowledge of illegal assassinations being committed by a undercover CIA officer and leaks that information along with the officer's undercover status to a reporter. If the CIA intended to cover up for the assassin, they could make the same kind of referral that the Agency did in the Plame case, to investigate who leaked the information on the undercover officer. How would a prosecutor or a court distinguish between the reporter's role in this case aiding a genuine "whistleblower" and the reporters' role in the Plame case where they were collaborating with a coverup for a crime? A prosecutor might be able to argue the situations were equivalent.

On the one hand, I worry about the precedent and I think a reasonable federal shield law is needed. On the other hand, I find it hard to have a lot of sympathy for the mournful grumping from the press about that aspect of the Plame case. Listen for the sound of sad violins as you read this example:
Analysts say information now could be harder to get by Joe Garofoli San Francisco Chronicle 03/07/07.

Because the press got themselves into this situation by allowing their professional role to be corrupted to the extent that they have. (To say what should be obvious, "the press" in this case is a general term to refer to those who were actors in this particular drama.) For instance, if a source lies to a reporter, it's perfectly ethical for the reporter to "burn" (expose) the lying source. Judith Miller and Michael Gordon of the New York Times reported a string of false stories based on anonymous sources about Iraq's nonexistent WMD in the lead-up to the war. But when they were exposed as blatantly false, they didn't have the sense of responsibility to their readers and to the public to burn the sources who gave them false information that facilitated started an unnecessary war.

Bob Woodward of Watergate fame knew at least one other administration official who had leaked Plame's name;we got to see and hear a snippet of his conversation with Richard Armitage on tape in the course of the Libby trial. Yet Woodward never bothered to even tell the public that he had also received such a leak, even while he went on TV and tried to minimize the importance of the Plame case. He was more interested in protecting his precious "access" so he could crank out his court histories of the bold deeds of the Noble Warlord George Bush than in doing his job as a reporter.

In fact, one of the most serious problems that the Plame case has laid open for the public to see is that major press institutions and leading individuals like Woodward saw their interest as being in minimizing the amount of information about the Plame leak that came out. Part of it was a partially-legitimate concern about protecting anonymity of sources. But they also had a stake in not advertising the extreme clubiness of their relationships with people like Libby and Karl Rove and how that was affecting their ability to act as professional journalists. And once they started trying to minimize the signficance of the case as Woodward did, then that also became a reason to keep doing so.

Otherwise they would be faced with having to report on and criticize the conduct of the press itself in this series of events. And, as Bob "the Daily Howler" Somerby regularly reminds us, good boys and girls among reporters know that they must never criticize the conduct of their own "cohort", as Somerby calls them.

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