Reportage Medialog

Although Judith Miller is out of jail nothing much new is known about why she decided to go there in the first place. We do now know that the source she was supposedly protecting was I. Lewis “Scooter” Libby, Vice President Dick Cheney’s chief of staff. But as even her own paper reports the sudden direct release from confidentiality by Libby seems to be an offer that has been on the table all along. Her lawyers spoke to his lawyers well before Miller was incarcerated and according to the Libby camp they gave “unequivocal” permission for Miller to testify. Miller says she needed direct confirmation which came in a recent phonecall with Libby. This seems rather odd: you’d think they could have had that phone call a few months back.

Miller’s other requirement was that she got a deal with the special prosecutor limitting her testimony to questions on her conversations with Libby about Palme. This is the type of deal that a number of other reporters got from Fitzgerald, so again it seems like this could have all been worked out a long time ago.

The irony is that a number of reporters, including Time’s Matt Cooper who nearly did jail time like Miller before coming to an arrangement with his source Karl Rove, have already testified about their conversations with Libby so Miller’s testimony is unlikely to add any new dimensions to the case.

As one rather wry reporter asked Miller on her release: “What about the perception that you spent 85 days dancing on the head of a pin?” Indeed.

But an article in today’s Washinton Post gives us a fresh perspective on the inquiry. Jim VandeHei and Walter Pincus speculate, based on conversations with lawyers involved in the case, that special prosecutor Fitzgerald may be getting ready to change tactics.

If formal charges cannot be laid under the Intelligence Identities Protection Act then he may bring general charges of criminal conspiracy.

Under this legal tactic, Fitzgerald would attempt to establish that at least two or more officials agreed to take affirmative steps to discredit and retaliate against Wilson and leak sensitive government information about his wife. To prove a criminal conspiracy, the actions need not have been criminal, but conspirators must have had a criminal purpose….

One source briefed on Miller’s account of conversations with Libby said it is doubtful her testimony would on its own lead to charges against any government officials. But, the source said, her account could establish a piece of a web of actions taken by officials that had an underlying criminal purpose.

Conspiracy cases are viewed by criminal prosecutors as simpler to bring than more straightforward criminal charges, but also trickier to sell to juries. “That would arguably be a close call for a prosecutor, but it could be tried,” a veteran Washington criminal attorney with longtime experience in national security cases said yesterday.

If this is the case the focus of the inquiry may finally shift from Miller’s questionable heroics to the heart of the matter: the deeply troubling behaviour of the Bush/Cheney Whitehouse.

Bush is being criticised for not acting fast enough and for a lack luster, even humorous, speech when he first addressed the plight of New Orleans. The New York Times has become increasingly strident in its editorials over the last few days:

George W. Bush gave one of the worst speeches of his life yesterday, especially given the level of national distress and the need for words of consolation and wisdom. In what seems to be a ritual in this administration, the president appeared a day later than he was needed. He then read an address of a quality more appropriate for an Arbor Day celebration: a long laundry list of pounds of ice, generators and blankets delivered to the stricken Gulf Coast. He advised the public that anybody who wanted to help should send cash, grinned, and promised that everything would work out in the end.

Bush doesn’t seem to have either a natural sense of compassion or even a natural political instinct on these occasions when symbolic leadership is most needed. Either Clinton or Reagan would have acted immediately and made us feel that they were involved personally and politically with the crisis. This symbolic act of the leader is of such importance and has real impact on the course of actual events by creating a buoyant atmosphere for recovery. But there is a difference between a genuine act of symbolic leadership, which requires engagement, reflection and action and a staged media event. Increasingly it is difficult for both politicians and the public to distinguish between the two.

A story has just emerged about how deliberately the Bush team stage managed the tour of the crisis zone. Louisiana Senator Mary Landrieu has just released a statement:

“But perhaps the greatest disappointment stands at the breached 17th Street levee. Touring this critical site yesterday with the President, I saw what I believed to be a real and significant effort to get a handle on a major cause of this catastrophe. Flying over this critical spot again this morning, less than 24 hours later, it became apparent that yesterday we witnessed a hastily prepared stage set for a Presidential photo opportunity; and the desperately needed resources we saw were this morning reduced to a single, lonely piece of equipment. The good and decent people of southeast Louisiana and the Gulf Coast – black and white, rich and poor, young and old – deserve far better from their national government.

This has been reported by the wires and some blogs but doesn’t appear to have been picked up by the mainstream press yet.

It is confirmed by at least one report from a viewer of a German news service who says the German account of Bush’s tour differed markedly from the CNN account:

There was a striking dicrepancy between the CNN International report on the Bush visit to the New Orleans disaster zone, yesterday, and reports of the same event by German TV.

ZDF News reported that the president’s visit was a completely staged event. Their crew witnessed how the open air food distribution point Bush visited in front of the cameras was torn down immediately after the president and the herd of ‘news people’ had left and that others which were allegedly being set up were abandoned at the same time.

The people in the area were once again left to fend for themselves, said ZDF.

Technorati Tags: Bush and Katrina

There has been some angry reaction to Arianna Huffington’s speculations about Judith Miller’s motives, that I quoted in my last entry. Richard Cohen in the Washington Post thinks it’s “ugly”:

The fury at Miller is ugly and does journalism no good. Whatever her politics, whatever her journalistic sins (if any), whatever the whatevers, she is in jail officially for keeping her pledge not to reveal the identity of a confidential source. (If that’s not the case, then we don’t know otherwise.) That pledge is no different than the one Bob Woodward made to Mark (Deep Throat) Felt.

While Huffington’s column was pure speculation (a reasonable activity for a columnist) it did attempt to do something that Cohen in his cheerleading does not do. Those, who like Cohen, want to beatify St Judith as the patron saint of confidential sources are making the same mistake that Miller herself made in her disastrous WMD reporting: they are not paying enough attention to motive.

If Miller is as good a journalist as her supporters are making out then she would never have been tricked into believing Amhed Chalabi’s furfies about Saddam Hussein’s weapons stash, she would have asked the simple questions about Chalabi’s motives and reliability as a source.

Those who speculate that there is more to the Miller case than meets the eye are only using their well honed journalistic instincts because the bare facts as they stand do not make sense. Every other journalist called upon by the special prosecutor has found a way - an ethical way - around jail time. Rove and numerous other White House sources have come forward, so she can’t be protecting them - and why would she protect a political source who was trying to use her to manipulate public opinion anyway? Unless of course she was more complicit in that manipulation than she cares to admit.

The reality is that no matter what facts finally emerge it seems that Miller’s pledge is indeed very different from “the one Bob Woodward made to Mark (Deep Throat) Felt.” This is necessarily so because the world of politics and the world of journalism has changed so markedly that the simplicity of the old codes no longer seem to work in such a straightforward manner.

It seems that the American Society of Journalists and Authors has thought more carefully about the Miller case than Cohen. The board of the organisation decided to reject the recommendation of their First Amendment Committee that Miller be given a Conscience in Media award. According to Editor and Publisher the decision was made because the board felt that “Miller’s career, taken as a whole, did not make her the best candidate for the award” and because of “divided opinions on the board over whether her recent actions merit the award.”

The earlier vote by the First Amendment committee had been narrowly in favor of giving Miller the award and was not made without internal controversy. One member Anita Bartholomew resigned in protest, writing in her letter of resignation:

“The First Amendment is designed to prevent government interference with a free press. Miller, by shielding a government official or officials who attempted to use the press to retaliate against a whistleblower, and scare off other would-be whistleblowers, has allied herself with government interference with, and censorship of, whistleblowers. When your source IS the government, and the government is attempting to use you to target a whistleblower, the notion of shielding a source must be reconsidered. To apply standard practices regarding sources to hiding wrongdoing at the highest levels of government perverts the intent of the First Amendment.”

Arianna Huffington has posted an interesting alternate scenario of Judith Miller’s involvement in the Plame scandal in her latest Alternet column. Although Huffington sources her scenario only vaguely, to something “floated in the halls” of the Times building, it does provide a credible reading that makes sense of Miller’s heroics in a situation where many other journalists have found ethical ways around an outright refusal to testify.

It’s July 6, 2003, and Joe Wilson’s now famous op-ed piece appears in the Times, raising the idea that the Bush administration has “manipulate[d]” and “twisted” intelligence “to exaggerate the Iraqi threat.” Miller, who has been pushing this manipulated, twisted, and exaggerated intel in the Times for months, goes ballistic. Someone is using the pages of her own paper to call into question the justification for the war — and, indirectly, much of her reporting. The idea that intelligence was being fixed goes to the heart of Miller’s credibility. So she calls her friends in the intelligence community and asks, Who is this guy? She finds out he’s married to a CIA agent. She then passes on the info about Mrs. Wilson to Scooter Libby (Newsday has identified a meeting Miller had on July 8 in Washington with an “unnamed government official”). Maybe Miller tells Rove too — or Libby does. The White House hatchet men turn around and tell Novak and Cooper. The story gets out.

This is why Miller doesn’t want to reveal her “source” at the White House — because she was the source. Sure, she first got the info from someone else, and the odds are she wasn’t the only one who clued in Libby and/or Rove (the State Dept. memo likely played a role too)… but, in this scenario, Miller certainly wasn’t an innocent writer caught up in the whirl of history. She had a starring role in it. This also explains why Miller never wrote a story about Plame, because her goal wasn’t to write a story, but to get out the story that cast doubts on Wilson’s motives. Which Novak did.

The fallout from the Plame affair continues, while Judy Miller sits in jail. A good piece in the Washington Post pretty much summarises what is known to date. One interesting piece of the chronology to emerge is how close Bush and Powell got to the event. One day after Karl Rove had a conversation with Robert Novak in which Rove now claims Novak told him about Plame, Bush and Powell set off for Africa.

Secretary of State Colin L. Powell, who was on the trip, carried with him a memo containing information about Plame, as well as other intelligence on the yellowcake claim. It is on this trip that, prosecutors believe, some White House aides might have learned about Plame.

The origin of the Plame information is central to the case. Prosecutors are trying to determine if White House officials shared information about Plame based on the State Department memo, or from conversation with reporters, as Rove has testified, or somewhere else. If it turns out Plame’s identity was learned from the memo, it would undermine the GOP defense that Rove and other administration officials were simply discussing information they had learned from reporters.

While the coincidence of this trip proves nothing concrete, the very coincidence of Powell, Bush, various aides, reporters and confidential documents is certainly interesting. Could it be that Miller is protecting Powell or someone on his staff who has not really come under the gaze of the inquiry?

The other element of the case that is clear from the report is that the court decision over Miller and Cooper, and Time’s collusion with that order, is having an impact on journalism:

The showdown over sources has already impeded at least two major media outlets. The Cleveland Plain Dealer, fearing criminal prosecution, has decided against publishing two investigative pieces not related to the Plame controversy because they were based on anonymous leaks. And Time reporters have said that at least two sources have told them they would no longer provide information because the company turned over documents in the Plame case.

Finally as the article concludes, although there are strict definitional issues of when, where and how that will ultimately determine whether a crime was committed, the clearly evolving story of “the investigation has exposed how an administration that publicly deplores leaking has engaged aggressively in the practice to advance its goals.” This of course is no real surprise, but we rarely get to see it laid out in the legal clarity that the resources of a special prosecutor affords.

Technorati Tags: Plame Affair

While the idea that Judy Miller is employing a redemption through martyrdom strategy is being given short shrift by those close to her many commentators are noting that this case is not about journalism in the abstract it is very much about the current state of journalism

Thomas M. Burton, a Pulitzer Prize-winning correspondent in the Chicago bureau of The Wall Street Journal, told the NYT he stood solidly behind Ms. Miller, “particularly at a time when journalists have come under scrutiny about the degree to which they can be believed and their reliance on anonymous sources.”

“The facts are complicated, but I have no doubt whatsoever that she is doing the right thing,” Mr. Burton said. “Like so many of us, she needs to send a message to the public that many of us are willing to stand up and pay the ultimate price to make news reporting possible.”

Howard Kurtz makes the point that this maybe a necessary stand but the circumstances make it very ethically grey:

Journalists, who have watched their public standing plummet in recent years, find themselves defending an abstract principle in a case in which the sources are not the sort of corporate and government whistle-blowers who were among Time’s “Persons of the Year” in 2002 but rather political insiders seemingly bent on partisan mischief.

By upholding the principle of confidentiality, said Time writer Margaret Carlson, “you’re protecting a creep.”

Kurtz also points out another strange set of circumstances:

The jailing of Miller comes during a week when Bob Woodward, once played by Robert Redford, is publishing a book about his relationship with the Watergate source known as Deep Throat. The former FBI official, W. Mark Felt, has reached a book and movie deal in which he could wind up being portrayed by Tom Hanks.

The contrast seems to capture a changing mood toward the shadowy dealmaking in which journalists extract information by promising to withhold people’s names — a practice that major news organizations now admit has been overused and abused — and sources use their anonymity to spin, settle scores or expose what they see as wrongdoing

If this is a case that is about the current state of journalism it is also a case about the current state of politics and the collusion that occurs between high level political sources with their own agendas and highly placed journalists who try their best to milk the system but who perhaps more often that not get taken for a ride by their sources - just as Miller was over WMD.

The introduction of national shield laws is not the solution to this wider problem. It may only exacerbate it. What is needed is a thorough rethink about journalism source relationships and a more rigorous attempt to evaluate the potential motive behind their play in the game.

While Judith Miller has spent her first night in jail the media are scratching their collective heads trying to work out exactly what is going on in this case and who talked to whom about what.

Did Robert Novak testify? Novak, the journalist who actually broke the story of Palme’s CIA identity, claiming two senior Bush administration officials as his sources, has refused to say whether he has testified to the Fitzgerald grand jury or not. One can only assume, given he is not facing jail time, that he has.

Was Karl Rove the source? Rove is the guy many people believe to have planted the stories and he pointedly refused to answer any questions about his involvement yesterday. This no-comment, non-denial immediately put him at the top of everyone’s list as the source.

Who was Miller’s source? Fitzgerald claimed in the Miller and Cooper case that the two reporters had at least one common source and that that source had signed a waiver. Neither reporter felt this was good enough reason to talk, presumably assuming that the waiver was general and coerced. However Cooper agreed to testify at the last minute because he was contacted directly by his source and given permission to testify. This would seem to indicate that Miller’s source is different.

Why does Fitzgerald want Miller’s source so desperately? If Fitzgerald has Novak and now Cooper and presumably under oath testimony from administration officials why is Miller’s testimony so crucial? Some have speculated that Fitgerald may need confirmatory testimony, some even that Fitzgerald is now not investigating the original crime of disclosing Palme’s identity but has moved on to trying to nail someone for perjured testimony.

What about Miller’s story? The irony of all this is that Novak and Cooper, who actually wrote stories about Palme, are free while Miller who didn’t write anything is in jail. So what was the story that Miller was working on and why didn’t she put it to print. Could it be that Miller was working on a story about the source of the disclosure rather than the disclosure itself? Altercation (via Hardcopy) even reports on the possibility that Miller told Rove about Palme in the first place!

Why protect a political hack? This is the question that does not seem to be on many journalist’s agenda. The leaking of Palme’s identity was clearly a malicious retaliatory smear campaign designed by a political operative to undermine the credibility of an opponent, an act that may have also broken national security laws. This does not seem like the type of situation under which confidentiality should be given or protected. If there is an argument about journalist/source confidentiality it is about exposing government corruption not assisting it.

Is Miller stage managing the whole thing? In a breath taking piece of cynical commentary the LA Times‘ Rosa Brooks floats the possibility that Miller is staging the whole thing as a way of redeeming herself for her serious ethical lapses on WMD reportage:

If a source with a clear political motivation passes along classified information that has no value for public debate but would endanger the career, and possibly the life, of a covert agent, is a journalist ethically permitted to “out” the no-good sneak? You bet. And if the knowledge that they can’t always hide behind anonymity has a “chilling effect” on political hacks who are eager to manipulate the media in furtherance of their vested interests, that’s OK with me.

But Miller still won’t testify. Even though, ethically, there should be no obligation to go to jail to cover for a sleazeball.

It’s possible (though not likely) that Miller is covering for a genuine whistle-blower who fears retaliation for fingering, gee, Karl Rove, for instance, as the real source of the leak.

But I have another theory. Miller’s no fool; she understood the lesson of the Martha Stewart case: When you find yourself covered with mud, there’s nothing like a brief stint in a minimum-security prison to restore your old luster.

Editor and Publisher summarises the none to glowing early reviews of Bob Woodward’s Deep Throat book, The Secret Man:

One of the leading political writers of today, Ron Brownstein of the Los Angeles Times, declares: “If Bob Woodward were in journalism school, his professor might have handed back his new book, ‘The Secret Man,’ as incomplete.”

And USA Today’s chief book critic, Bob Minzesheimer, today writes: “Woodward’s book is filled with as many questions as answers. It’s more about Woodward than Felt. It’s fascinating and frustrating, revealing and disingenuous, self-critical and self-serving.”

Meanwhile, in a Time magazine item, Alicia Shepard (who is writing a biography of Woodward and Bernstein) takes this shot: “Bob Woodward’s memoir … doesn’t shed much new light on Watergate. But it does tell us a lot about how Woodward, the journalist who helped bring down a President, cowered around his secret source, W. Mark Felt.”

In his review, Ron Brownstein calls it an “intermittently engaging but ultimately slight memoir” and says Woodward “fails to answer the most important question remaining after Felt unveiled his identity in a Vanity Fair story: Why? Why did a career FBI agent who had ascended to the second-ranking position in the bureau, and who didn’t think much of the press, leak such critical information about the scandal to Woodward?

It seems to me that the answer to that question isn’t very difficult to answer. It has to do with thwarted ambition. Felt’s personal ambition to head the FBI was thwarted by Nixon but also Felt obviously thought that Nixon was thwarting the very agency that Felt had helped Hoover create. This is of course different to the traditional whistle blower’s concern for justice because the agency that Felt and Hoover had created had very little to do with justice. Felt himself only avoided jail time via a Reagan pardon over some of his dodgy practices. But for Woodward to admit or speculate about any of this would be to blow the myth of Watergate sky high. Once Felt’s ambition was showing then maybe Woodward’s own ambition would also be more carefully scrutinised.

Steve Lovelady has a good Editor’s note on CJR Daily about Time’s decision. He notes that Time Editor-in-chief is both a lawyer and a journalist:

Time Inc. is a vast enterprise, publishing Time, Fortune, Money, Sports Illustrated, People, Entertainment Weekly and over 100 smaller magazines — yet, for all that, it is but one division of the megalith entertainment company Time Warner. As David Halberstam told the New York Times, Time Inc. “is a strange company and it’s a different company now, and it is really part of an entertainment complex. The journalism part is smaller and smaller. There is a great question out there: is this a journalistic company or an entertainment company?”

Once media companies become part of larger conglomerates like Time Warner, Viacom, Disney, General Electric, those companies and the journalists they employ have sharply diverging obligations. And the top editors among them find themselves with one foot in each camp. Was Pearlstine, for example, acting as a journalist, or as a corporate executive?

This highlights the political context of this decision. It is harder and harder for company’s like Time Warner to maintain a discrete journalistic culture because the commercial and the journalistic are no longer producing a creative tension they have become very unequal partners in the game. Just as I was arguing that the decision sends a “bad message” on a world scale, Lovelady notes the potential ripple effect down the US media chain:

In the meantime, Fordham University communications professor Paul Levinson told USA Today that Pearlstine’s decision sends a “bad message” to the rest of the news media, especially smaller outlets with less editorial clout than Time. “How is some local paper in a rural state going to find the courage to stand up to this kind of thing if Time doesn’t have the courage?” Levinson asked.

Time has decided to hand over reporter Matt Cooper’s notes in the Palme affair, even though Cooper himself has indicated he is willing to go to jail rather than testify before the grand jury. Cooper yesterday said he understood that the individual journalist and the company had different obligations.

Adam Liptalk’s NYT report calls the case the “gravest legal confrontation between the press and the government in a generation”. He continues:

The announcement by a major news organization that it would disclose the identities of its confidential sources in response to a subpoena appears to be without precedent in living memory and suggests a turning point in the relationship between the press and the government. The news media have been under growing pressure and scrutiny over issues of accuracy, credibility and political bias.

The press has traditionally argued that it needs confidential sources to ensure that the public is fully informed. That interest is outweighed, recent court rulings have said, by the needs of the judicial system for evidence.

It is interesting that the commentary is turning on the differences between good corporate and good individual citizenship and the notion of protection of assets. This is seen in two quite contradictory ways as is indicated by these different legal perspectives in the NYT report:

Zachary W. Carter, a former United States attorney in Brooklyn, said that media companies and their reporters have different obligations.

James C. Goodale, a former general counsel of The Times Company and an authority on legal protections for reporters, said news organizations have sometimes claimed ownership of reporters’ notes - in order to protect them.

“It has always been thought to be beneficial to the reporter to have the institutional press on his side,” Mr. Goodale said.

Mr. Goodale added that he disagreed with Time’s decision.

“A public company must protect its assets even if that means going into contempt,” he said. “It has an obligation under the First Amendment to protect those assets, and it’s in the interest of shareholders to protect those assets.”

Time’s Editor in Chief phrases it differently in his comments to the Washington Post:

“As much as I’m a staunch defender of editorial independence, I don’t believe there’s anything in the Constitution that says journalists are above the law,” he said. “The alternative to complying would be a kind of anarchy.”

Pearlstine said, “those of us in the news business are constantly pointing fingers at others who act like they’re above the law. We can’t now assert that we are.”

The Time statement said: “We believe that the Supreme Court has limited press freedom in ways that will have a chilling effect on our work and that may damage the free flow of information that is so necessary in a democratic society. It may also encourage excesses by overzealous prosecutors.

“Although we shall comply with the order to turn over the subpoenaed records, we shall continue to support the protection of confidential sources,” the statement continued. “The same constitution that protects the freedom of the press requires obedience to final decisions of the courts and respect for their rulings and judgments. That Time Inc. strongly disagrees with the courts provides no immunity.”

As the NYT report indicates this is a “generational” conflict. It has as much to do with the state of the media, and the current political environment as it does with the constitutional issues involved. It is a very sobering moment.

Yesterday I said that Miller and Cooper serving jail time would immediately admit them into the pantheon of journalistic mythology. Today the story turns darker and Norman Perlstine finds himself in danger of being relegated to the hell of editorial villains.