In the midst of the media's love-fest for Judith Miller, 1st Amendment Martyr, it's easy to forget that Miller's questionable journalistic ethics left her in the doghouse only a year ago. Indeed, when it came to leaks, the only people busier than White House staffers last year were the denizens of the New York Times' newsroom, who fell all over themselves to excoriate Miller to competing publications.
According to a June 2004 story in New York magazine, for instance, one anonymous co-worker said: "When I see her coming, my instinct is to go the other way." By many accounts, Miller is rude, competitive and heartless, willing to pursue a hot story at any price. In at least one instance, she reportedly used the name of a source who had provided information only on condition that her name not appear.
It was Miller, more than any other reporter, who helped the White House sell its WMD-in-Iraq hokum to the American public. Relying on the repeatedly discredited Ahmad Chalabi and her carefully cultivated administration contacts, Miller wrote story after story on the supposedly imminent threat posed by Saddam Hussein.
Only problem: Her scoops relied on information provided by the very folks who were also cooking the books. But because Miller hid behind confidential sources most of the time, there was little her readers could use to evaluate their credibility. You know: "a high-level official with access to classified data." Ultimately, even the Times' "public editor" conceded the paper's coverage of Iraq had often consisted of "breathless stories built on unsubstantiated 'revelations' that, in many instances, were the anonymity-cloaked assertions of people with vested interests."
That's what makes the Judy Miller Media Hug-Fest so astonishing. Miller's refusal to testify to the grand jury investigating the leak of CIA agent Valerie Plame's name has catapulted her back into favor. Ironically, as it becomes ever more likely that she'll be jailed for contempt of court, the very affection for anonymous sources that landed Miller in hot water last year has become her route to journalistic rehabilitation. The Houston Chronicle rhapsodizes that "reporters such as Miller … are the front line in the struggle to maintain a free and independent press." Back at the New York Times, Miller's publisher, Arthur Sulzberger Jr., assures us that everyone is busy "supporting her in this difficult time."
I'm as big of fan of the 1st Amendment as anybody, but I don't buy the new Miller-as-heroine story. When Judge David Tatel concurred in the D.C. Circuit's refusal to find any absolute journalist privilege shielding Miller from testifying, he noted, sensibly, that "just as attorney-client communications 'made for the purpose of getting advice for the commission of a fraud or crime' serve no public interest and receive no privilege … neither should courts protect sources whose leaks harm national security while providing minimal benefit to public debate." Few legal privileges are absolute, and it's appropriate for the courts to decide in cases such as this whether the harm of requiring a journalist to divulge confidential information is outweighed by the public interest in prosecuting a crime.
Reasonable people can disagree on the appropriate scope of journalistic privilege. But we should keep the legal question — when should journalists be compelled by law to divulge their sources? — distinct from the ethical question: Is a journalist ever ethically permitted to break a promise and divulge a source? However we answer the first question, the answer to the second must be a resounding yes.
Should Miller have refused to offer anonymity to all those "high-level" sources who sold us a bill of goods on Iraq? Yes.
If it becomes apparent to a journalist that a source lied to him on a matter crucial to the public good, should he be ethically permitted to expose the lie and the liar, despite any prior promises of confidentiality? Yes.
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.
© 2005 the LA Times