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March 09, 2007

Fall Guys and Fantasies
Posted by Rosa Brooks

The fallout from the Lubby conviction just keeps on, uh, falling. The right wants Libby pardoned because a) it just ain't fair to be convicted of perjury etc. when there was (they claim) no underlying crime, and b) it just ain't fair anyway, because he was just following orders from the Prince of Darkness. Meanwhile, the ladies and gentlemen of the press continue to beat their breasts over the alleged threat to journalistic integrity posed by Fitzgerald's (SHOCKING! UNTHINKABLE! EVIL!) subpoenas to journalists.

Could we inject a little reality here? All of these claims and concerns are somewhere between baseless and just stupid, not to mention hypocritical, whiny, etc.

Here's my take on all this.

1) Claim: It's no fair to convinct someone of perjury/obstruction of justice/lying to investigators when the subject of the lies and obfuscation was not itself a crime!

No-- the reason both federal and state penal codes make perjury, obstruction of justice, etc. independent crimes is that when people lie to investigators, it becomes impossible to determine for sure whether or not a crime has occurred-- and even if prosecutors themselves become convinced that a crime has occurred, the lies and obfuscations may make that crime impossible to prove in court. The fact that Fitzgerald did not, in the end, prosecute anyone for an "underlying crime" does not, in itself, tell us whether or not an underlying crime occurred. Maybe an underlying crime occurred but Fitzgerald could not ferret out the truth because of Libby's lies and obfuscations; maybe an underlying crime occurred and Fitzgerald found evidence of that crime, but for one reason or another the evidence was tainted or insufficient, in his view, to assure a conviction in court. Smart prosecutors bring cases they're confident they can win, not cases they're not sure they can win.

My point here is not that there was definitely an underlying crime of which Libby or others were guilty: maybe there was, and maybe there wasn't. My point is that Fitzgerald's failure to charge anyone with the original leak tells us nothing whatsoever about whether a criminal leak occurred. We'll probably never know. And the reason to charge Libby with perjury/obstruction of justice/lying to investigators is to punish him for doing his best to make sure that we never will know.

I won't even go into the hypocrisy of the right's current rhetoric, contrasted with their rather different tune during the Clinton impeachment. Grrr.

2) Claim: It's no fair for Libby to go to jail when he was only following orders!

Well... the "following orders" line has a long and nasty pedigree. Bottom line, Libby did something he knew to be illegal and wrong: he lied, lied, and lied some more. If there was an underlying criminal leak, his lies helped ensure that no one could ever be charged over it; if there was no underlying crime, then he lied out of habit, out of contempt for the legal process, out of... God knows what. Either way, he's guilty. There was no witch hunt. He brought his fate upon himself, and there is no basis for a pardon. Come on: the sentence won't be long. He's getting a rap on the knuckles.

But I do feel sorry for him, nonetheless. Yeah, he lied. But it's true that he was almost certainly doing the bidding of his boss, and it seems rough for him to end up in prison while Cheney continues to screw up US foreign policy in peace. But the solution to this isn't a pardon. If Cheney doesn't like to see his loyal staffer take the fall for him, he can always resign.

3) Okay, last point in a long post. The journalistic hysteria about all this is navel-gazing and unwarranted. The press seems to think it's outrageous that any prosecutor would ever try to compell them to cough up their sources, and that journalistic privilege should be absolute. I do not understand where this fantasy comes from: certainly few courts have ever supported that notion.

Journalists are special, but they're not that special. There are very few "absolute" privileges of the sort many journalists wish they had. Lawyer-client privilege? Nope: there's comething called the crime/fraud exception, which basically says that neither the client nor the lawyer can claim the privilege if it is being used to cover up or further a crime or fraud. Shrink/patent privilege? Falls when patient might harm self or others (and in some circumstances, reporting is obligatory: eg, cases of suspected child abuse). Doctor-patient? Similar. It is far from unreasonable for journalistic privilege to be subject to similar restrictions. The journalist's duty is to the public, not to the source.

Journalists often claim that whisteblowers will be chilled if they know that journalists could conceivably be legally required to reveal their identities.  It is possible that some whistleblowers will be chilled, which would be bad for the world. But this has to be balanced against the harm of allowing those who commit or aid and abet crimes to hide behind journalistic privilege. In the abstract, there is no reason to think that the first harm will outweigh the second.

I am probably going to be drummed out of the journalism academy for saying this.... But in the end, both journalists and potential whistleblowers have to accept that when you stand up for what you believe in, you may get in trouble. That's life. The whistleblower takes the risk that he or she will end up getting in trouble--or even being prosecuted-- for revealing nafarious goings on; potential whistleblowers have decide if they're willing to take that risk. Some won't, and some will. Meanwhile, journalists who face subpoenas to reveal their sources will have to decide, on a case by case basis, if what they are protecting is worth facing prison on contempt charges.  (It's sure hard to see that Judy Miller was protecting someone worth protecting). I think the concern about politically motivated subpoenas of journalists is wildly exaggerated. But if it happens? Well, journalists, that's when you get to go down in history by bravely facing possible jail time. Get a little backbone, people!


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Okay, last point in a long post. The journalistic hysteria about all this is navel-gazing and unwarranted. The press seems to think it's outrageous that any prosecutor would ever try to compell them to cough up their sources, and that journalistic privilege should be absolute. I do not understand where this fantasy comes from: certainly few courts have ever supported that notion.

I disagree with you on this last one. I personally favor a strong and comprehensive journalistic shield law that gives journalists the right to protect their sources even when doing so entails withholding evidence of crimes, even crimes they may have directly witnessed in the course of doing their jobs. I want journalists to have the ability to go into the worst of places - those iniquitous dens of thieves, murderers and government officials - and get people to talk to them about everything. To do so, they have to be able to offer a credible guarantee of anonymity. And while in the den of iniquity, they may witness crimes being committed, yet be unable to provide authorities with information on those crimes in such a way as to shield their sources. Tough. We may lose from time to time by depriving prosecutors of the ability to obtain valuable information on serious crimes. But we gain much more in the long run by extending our view into the worst of places.

Consider this possibility: Suppose some future Libby or Cheney decides to violate some government secrecy law by telling a reporter about some highly classified disinformation program, or assassinations program or torture program or weapons program. If that reporter can't report on on this information because the official's disclosure of the information to the reporter was itself a violation of law on which the reporter might be called to testify, we won't learn of the program's existence.

I am dismayed that back in the Vietnam and Watergate eras it used to be progressives who most often defended this sort of absolute freedom and empowerment of the press, but that so many of them have now traded in those old principles for a quick political score on a relatively meaningless perjury case.

Dan, how much should we trust reporters? More than politicians, sure, but how much more?

Suppose that a reporter claims that several anonymous government officials told him they were involved in creating 9/11 for Dick Cheney, who wanted it so he could carry out his plans. That would be a pretty impressive piece of reporting, wouldn't it?!

But he didn't have to reveal his sources to anybody. I could do some tremendous scoops if I didn't have to prove to anybody that the interviews ever happened. Of course my boss would want to make sure I reported things that people believed, since he wouldn't want his news channel's reputation to suffer from reports that people thought were fake. Would the public believe that Bush had regular sex with an intern? Maybe not. Would they believe that five prominent generals who've served in iraq say privately that the war is not winnable? Definitely. It probably wouldn't even have to be made up, just interview five or six generals who've served in iraq.

How about a report attributed to unnamed higher-ups in the Democrat Party who explain that the whole party is built on corruption and nothing but corruption.

If there's no accountability (and I don't see that there would be any), then wouldn't the limiting factor be what the public believed?

No, to let journalists say anything they want with no accountability we need absolute trust in the journalists. And I don't.

But he didn't have to reveal his sources to anybody.

That's already true about 99.9% of reporting J. Most reporting doesn't involve witnessing a crime, and so there is no basis for forcing the reporter to reveal sources. So a reporter can always make up a source, and sometimes they do.

We assess a reporter's credibility by their track record of being right, by the surronding details in the story that are independently verifiable and numerous other means.

Dan, let's think about that.

When unnamed CIA guys said that Cheney's lying pet spy team was stovepiping unreliable data, my father said it was just the anti-Bush media making stuff up.

And for pretty much everything they report that makes Bush look bad, he says it's just the media making things up.

Since there's no accountability, he just believes whatever he wants to believe. He very much prefers to believe that the leaks were either made up completely by the media or else they were made up by CIA agents etc who just wanted to hurt Bush and didn't mind lying to do it.

As it turned out, the Bush administration didn't want to prosecute the leakers for revealing national secrets. That would have established a legal record that the leakers were telling the truth and the administration was lying. Instead they chose to make them disappear by some other method. And there's no particular reason to think the journalists didn't tell them everything they knew about their sources, given the rasnge of extra-legal threats available. But the journalists didn't have to say in court that they'd squealed.

So -- what's it all about? When the US government can put suspected rogue CIA agents in a secret prison in slovakia or wherever with no legal folderol required, what difference does it make what the laws are about what journalists reveal?

And with no media accountability, what difference does it make what the media report?

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