The Gray Lady's Dishonesty
By Michael M. Rosen Published 07/14/2005
As the national "paper of record", the New York Times has obligations
not only to its readers, its writers, and its sources, as well as its
brothers-in-arms in the worldwide media, but to all Americans. Devotees of
the Times are invited to place their trust in the paper's reports, its
editorials -- and its integrity.
It's a shame, then, that the paper has gone so far out on a limb in
the recent Joseph Wilson-Valerie Plame affair in naked pursuit of two
paramount objectives, to the exclusion of all others: uncompromisingly
defending the inviolability of reportorial privilege and relentlessly
excoriating the Bush administration.
But strangely enough, in this case, it turns out that the two
objectives are fundamentally at loggerheads. In order for the administration
to "do the right thing," in the eyes of the fabled Gray Lady, it must
conduct a thorough investigation of whether a government official, in
mid-2003, knowingly leaked to the media the identity of Plame, said to be a
covert CIA agent at the time. Yet in order to uncover the leaker, federal
investigators must interrogate the most relevant witnesses to the alleged
crime, namely the recipients of the leaks.
This paradox has forced the Times -- and other liberal papers and
commentators -- to turn linguistic and logical cartwheels when justifying
their statements and actions. Thus, investigators under the guidance of the
prosecutor, former United States Attorney Patrick Fitzgerald, are enjoined
to suss out any and all violations of the law and to bring the perpetrators
to justice. The administration is called upon to take all necessary measures
to comply with the law.
But -- and here's the rub -- journalists need not comply with the
legal prerogatives of the investigators, says the Times, even if the Supreme
Court itself declares that they must. This disconnect -- in which the paper
seems to believe that it and its reporters are above the law -- will erode
the trust that the public vests in Big Media.
To be sure, the Times appears at least to recognize the potential for
hypocrisy or self-contradiction in its statements. In its first editorial on
the issue [indirect link], the paper lavished attention on the specter of a
whitewash, since the investigation was to be conducted by the Justice
Department of John Ashcroft, ostensibly the President's lackey. The Times
then opined that while it opposes leak investigations in general, there
might be cause for an exception in the Wilson-Plame situation, which the
paper likened to disclosing troop movements during war.
However, the editorial continued, because Congress barred the
prosecution of any journalist who obtained the name of a covert operative
from a government official, the "Bush administration should not use the
serious purpose of this inquiry to turn it into an investigation
of.any.journalist, or to attempt to compel any journalists to reveal their
sources."
Leave aside, for the moment, the backwardness of the Times' logic (the
fact that Congress exempted journalists from liability, without shielding
them from investigative pressures to divulge their sources, if anything
reinforces their obligation to comply with prosecutors). More important is
that the horns of the dilemma are on display for all to see: on the one
hand, the sheer importance -- indeed, the implications for our very national
security! -- of this investigation; on the other, the inoculation of
reporters from prosecutorial probing.
But the very nature of the "crime" here renders the Times' position
absurd: the actions in question inherently involve revealing sensitive
information to journalists. Congress has criminalized a very specific
category of speech, speech that has effectively lost its protected status.
By analogy, a client generally owns a privilege in any communication
he imparts to his attorney. But if, for example, he specifically informs his
lawyer that he intends to kill someone imminently, the attorney must break
her client's confidence and report him to the authorities.
Here, in a federal investigation, there exists no such reportorial
privilege (although there are moves afoot to establish one). Regardless, if
one existed, it would and should not cover the conduct in question. The
(alleged) speech is itself the crime; its only witnesses are the accused and
the reporter. But the Times seeks to kneecap the prosecution by sequestering
these witnesses.
Such muddled reasoning and empty posturing does nothing to endear the
paper, or Big Media in general, to the news-consuming public. Increased
reliance on blogs and talk radio -- generally more transparent and less
pompous modes of communication -- will likely result from the kerfuffle, as
will diminished belief that the Times has the country's best interests in
mind.
Of course, not every liberal newspaperman condones the Times'
approach. Michael Kinsley, head honcho of the Los Angeles Times´ editorial
page, lit into the Gray Lady in a recent piece. And some conservatives have
been a bit too eager to exonerate Karl Rove (who has been implicated as a
source of some information by one reporter) or to slam Judith Miller (who
now sits in an Alexandria, VA, prison for refusing to disclose her
source(s)). Nevertheless, the Times (of New York) has gotten far too
overheated about both the investigation and the endangerment of journalistic
privilege.
Emblematic of the Times' inconsistent approach is its conclusion in
Wednesday's editorial: "Mr. Rove could clear all this up quickly. All he has
to do is call a press conference and tell everyone what conversations he had
and with whom. While we like government officials who are willing to whisper
vital information, we like even more government officials who tell the truth
in public."
The first part of this quote is troublesome enough. Rove has
reportedly already given blanket permission for any journalist to disclose
to prosecutors the content of their conversations with him about the issue;
even if the Times is correct in dismissing such waivers as coerced, why is
editorial coercion any less offensive than the prosecutorial version? The
paper seems to believe it's alright to pressure a governmental official to
publicly disclose matters under (secret) grand-jury investigation, but it's
anathema to ask a journalist to comply, confidentially, with the same
investigation.
But worse is the second part. The Times, like all newspapers, trades
in "whisper[ed] vital information" as a mechanism for ensuring that
officials -- from Rove to Wilson -- "tell the truth in public." Why, then,
is it so reluctant to ensure the integrity of an investigation designed to
do just that? What we Americans like are reporters -- and newspapers -- with
a similar allegiance to seeking the truth.
Michael M. Rosen, a TCS contributing writer, is an attorney in San
Diego.
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