Monday, July 11, 2005

 

Blowing the horn or blowing smoke

Several different people (see the always-intelligent Chris Geidner, for example, and General Washington) have posted their takes on last week's story in the Plain Deal in which Doug Clifton seemed to be asserting that the paper has had to sit on two blockbuster controversies in order to protect their sources. Clifton linked it to the jailing of NYT reporter Judith Miller:
Who in America goes to jail just for doing his job? Nobody, unless you happen to be a reporter.
As we've noted in the past, we are not attorneys so we can't ground our reaction to all of this in strictly legal terms. And, our biases always lean pretty acutely to the First Amendment direction. Nevertheless, there is something about Clifton's comments that rankle us.

First, Clifton's comment that "people who would face deep trouble" is more than a little ambiguous, even if the next sentence does make a reference to jail.

We'll get back to this, but first let's look at the the murkiness of it all. As Josh Marshall has indicated, there is a lot of information around that suggests that the Judith Miller situation is probably different than the one Matt Cooper faced.

Josh has been suggesting for some time that Miller's problems may have to do with her being the source of information that was at some point later published in the information chain. We wouldn't be the first to speculate that, given Miller's close ties with Chalabi and his circles, she may have played a role outside of her reporting duties in making sure that that the Plame's cover was blown.

Back to Cooper and his source (we now know one was Rove), we think that there an distinction between passing on illegally received information whose publication isn't illegal versus perhaps legally obtained information whose publication may be illegal.

Clearly, at this point no one knows where Rove got his info on Plame. If it was from Miller, that's probably an illegal source. But, it's still plausible to us that Rove might have a legal source for his information.

Regardless, the conveyance of the information to Cooper for the purpose of publication seems to us to be a separate and potentially illegal act, and a different kind of situation than the normal jail-the-report-to-make-'em-talk story. We know that this may be not be the best analogy, but it would be sort of like the situation with shared copyrighted music: how you obtained the music in the first place would be a separate matter from the act of sharing it.

Now, let's return to the PD. Josh Marshall has also been sharp about analyzing the DOJ guidelines for compelling testimony form journalists: "It's not to be done for idle curiosity or to tie up loose ends, but only when the prosecutor believes he's zeroing in on a crime. And even then they're not supposed to do it unless all other alternatives have been exhausted."

Now, Clifton fails to reveal whether he is worried about federal inquiries or whether it might be at about getting heat some other level. Without knowing more, it seems to be a leap to assume that a PD reporter would be compelled to reveal a source.

To us, there are two main probabilities. The first is that Clifton is assuming the worst will happen, and perhaps even exaggerating the threat a little bit.

The second is that Clifton is correct and publication of the information now - based on their source - would bring bring an investigation and the threat of jailing to the reporter.

But, would Clifton really publish a story based solely on a source like this? We don't think so. Reporter friends tell us that more often than most people would think, they get information that sure seems as if it was taken illegally. The general rule of thumb is that you must find other sources that will confirm this information.

And Clifton knows this. Hell, the PD did 9 months of stories based on data from stolen computer disks. But they found a way around it.

So, as much as we'd love to know the content of the two stories he references, we think Clifton's lament - based soley on what he chose to reveal - sounds to us to be more of a journalistic problem, not a legal one.

[Update to fix typos - sorry Chris.]

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