Abuse of the Ethics of Journalism?

Yesterday's (it's after midnight here) New York Times had this interesting piece on one of its reporters, Judith Miller. Judith Miller has just served 85 days in prison for refusing to reveal her source to US prosecutor Patrick Fitzgerald (who is praised lavishly and compared with Eliott Ness in another hagiographic piece by NYT).

On July 6, 2005, the judge of the grand jury convicted Judith Miller of contempt of court for her failure to reveal her sources in the White House. About 12 months earlier, journalist Kim Novak revealed that Valerie Plame, the wife of former US ambassador to Niger, Joe Wilson, was a CIA operative. He based this on informed sources within the administration. Rumors were pointing to Karl Rove, one of president Bush' most important advisors. Revealing the identity of a CIA operative is a federal crime. Generally, it is believed that the White House leaked this information to get even with Wilson for his article in the New York Times in which he denied that Iraqi agents had managed to purchase uranium yellow cake (an impure form of uranium used for constructing nuclear weapons) from Niger or anywhere else in Africa.

Judith Miller had good contacts in the White House and is seen by some as one of the New York Times’ journalists who tried very hard to make the threat of WMDs credible. After Kim Novak revealed the information about Ms. Plame, Time reporter Matthew Cooper did the same. Judith Miller, however, never published the above mentioned facts about Plame. Since revealing the identity of a secret agent is a federal crime, a grand jury was asked to investigate the matter and, if possible, bring criminal charges to those involved. The prosecutor subpoenaed Matthew Cooper and Judith Miller (but not Kim Novak!). They refused to reveal the identity of their White House source(s) upon which the judge declared that it was not up to them to decide whether or not they were permitted to withhold such information.

Journalists have an obligation to inform the public as well as they can. They also have an obligation protect their sources. In order to satisfy this latter obligation, they sometimes refuse to name their source. And we all know examples, real of fictitious, about heroic journalists who rather go to prison than reveal their source. Because of this, journalists sometimes claim that they should be excused in such cases and granted the privilege of not revealing their source. It is commendable when journalists are willing to undergo serious difficulties in the cause of this privilege.

Judith Miller claimed a similar privilege. However, what she did was nothing short of an abuse of that privilege. Here is why. It seems a crime has been committed: the cover of a CIA operative was deliberately blown, by one or more persons in the administration. The US prosecutor has to show that there was a pattern of leaking to the press in order to establish that this was deliberate. This requires that he find out who have been talking about Valerie Plame to the press. So if members of the press subsequently keep quiet they become accomplices to this attempt to thwart the investigation (another crime).

The question is whether journalists should have this privilege regardless of their actions and intentions. For example, if a journalist by remaining silent about her source, allows corrupt and criminal officials to get off the hook, it seems that the grounds for having the privilege not to reveal one’s sources are not satisfied. This is exactly what was going on in the case of Miller’s refusal to reveal Libby's name to the prosecutor. By remaining silent, she did nothing to advance the public interest. In fact, it looks like her silence did nothing to protect her source (Matthew Cooper and Kim Novak have talked to the prosecutor already), but seriously impedes the case of the prosecutor. He has to prove that this leak was not accidental, but part of a pattern in order to prove his case against Rove and Libby.

So this seems a case where the claimed privilege to remain silent about the identity of one's source constitutes a potential abuse of such a privilege.

That raises the question why the NYT was so proudly rallying behind Miller almost three months ago when she had to go to prison. These facts were known then as well as now. Could it be that the prospect of having a martyr for the cause of the public's right to know on the payroll obscured the vision of Judith Miller's superiors? It seems the NYT is asking itself that question as well...