Judith Miller committed no crime.  In fact, she wrote no story.  She’s been jailed because she refuses to rat out a source to whom she promised confidentiality.

Judith Miller Goes to Jail…for You

A journalist — Judith Miller of The New York Times — is in jail today.  Her lost freedom is ours.  Long before some of this country’s judges decided that the Constitution does not mean what it says, that Constitution prioritized freedom of religion, freedom of speech and freedom of the press first and foremost against government intrusion.  Just as freedom of religion is more for the people than the priests, so, too, is freedom of the press more for the people than the press.

If the press cannot obtain and publish information without government hindrance, the people cannot receive information without government hindrance.  Judith Miller’s lost freedom is ours.

The case for which Judith Miller has been jailed, if there is one, is BS, minor league BS, Washington Gotcha BS.  The cases for which journalists are jailed for refusal to reveal confidential sources are almost invariably penny ante BS, testosteronial brinksmanship pursued to the edges of absurdity, irresistible prosecutorial forces meeting immovable journalistic principle.

The rhetoric of pursuit is lofty, wrapped in the mantle of “responsibility, obligation, the law.”  The reality is that “the law” is one fine mess, helped not at all by a Supreme Court that, by refusing to consider this issue once again, failed in its responsibility to establish a bright line standard for all to know and understand, to be applied equally across the land.

“Congress shall make no law…” must have seemed so elegant to the Founders who believed that plain language directives would best sustain our guiding document, the arbiter of balance between government and citizen, now tattered by jurisprudence gone wild.  Pick an amendment; kiss it goodbye.

The case for which Judith Miller has been jailed is known only to those who care, not so many of you.  Sources within the Bush administration told Miller and other journalists that Joseph Wilson’s wife, Valerie Plame, an employee of the CIA, recommended Wilson for a CIA mission to investigate whether Niger was selling bomb stuff to Iraq.  He said “Nay,” and went public with criticisms of the administration.  Whatever the motives of the leakers, the revelation provided some perspective to Mr. Wilson’s mission and findings, for those old and wise enough to understand that the CIA is as political as the next place.

The leakers may have committed a crime, if they knowingly revealed the identity of a secret intelligence agent.  All things considered, although not enumerated here, it is doubtful that crime occurred.  But that has not stopped Special Prosecutor Patrick Fitzgerald from pursuing those journalists to whom the leakers talked.

Judith Miller committed no crime.  In fact, she wrote no story.  She’s been jailed because she refuses to rat out a source to whom she promised confidentiality.  That’s principle, among the first that good journalists learn, the one that good journalists never abandon.

Companion bills before Congress — S. 340, S. 369 and H.R. 581 — would establish a national shield law for journalists.  Such a federal shield needs support because it may be the only thing that stands between the next Judith Miller and jail.  Far more important, it ultimately may be the only thing that stands between the awesome power of the government and a story you need to know.

There are many ironies here, including the need for a law to protect that which should not have been denied, except in the extreme circumstances that journalists well understand.  There is also the irony that it is a reporter for The New York Times, which of late has displayed a somewhat cavalier attitude toward the rights of others, who has been trampled.  But those who fight for principle do not abandon principle because others do.

The Center for Individual Freedom filed amicus curiae briefs all the way to the Supreme Court on behalf of Judith Miller, Matthew Cooper and Time magazine.  We are proud that we did so for Miller and Cooper.  We are embarrassed that we did so on behalf of Time, rarely a paragon of enterprising journalism and not in the foreseeable future to be trusted after turning over Cooper’s notes and e-mails to prosecutors, in contradiction of his wishes and assurances to his source.

July 7, 2005
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