Cry Me A River, Journalists

Reaping the whirlwind:

Adversaries First, Journalists Second

The Valerie Plame kerfuffle has been bad for American journalism, and the indictment of Scooter Libby in matters tangential to the kerfuffle may make things worse. Libby's lawyers "told a federal judge Friday they want to subpoena journalists and news organizations for documents they may have related to the leak of a CIA operative's name," the Associated Press reports:

In a joint filing with prosecutors, lawyers for I. Lewis "Scooter" Libby, 55, warned U.S. District Judge Reggie B. Walton that a trial likely will be delayed because of their strategy to seek more subpoenas of reporters' notes and other records. . . .

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the defense's strategy is no surprise but still alarming.

"Every key witness in this case is going to be a reporter," Dalglish said. "It's an absolutely ugly situation, . . . putting reporters in a very, very bad position, . . . and it should send a chill up the spine of American citizens across the country."

Newsday's Timothy Phelps, in an article for Columbia Journalism Review, notes that whereas the reporters who testified for the prosecution did so "mostly under agreements restricting their testimony to very specific issues," Libby's lawyers "are not bound by such agreements." If called by the defense, the reporters' case for immunity from testifying--which the courts have rejected anyhow--is even weaker than it was when dealing with the prosecution. After all, Libby has a fundamental constitutional right to a fair trial.

Phelps's piece is important because it is the most comprehensive acknowledgment we've seen from a news reporter of what we've been arguing for years, that journalists have done their own profession grave damage by flogging this phony scandal:

We cannot distinguish between sources we like and those we do not. Some [journalists] complained that [Judith] Miller's sources weren't "whistleblowers"; they were wrongdoers who ratted out Valerie Plame. And did it perhaps matter that they were Republicans, the dreaded neocons no less?

I asked Floyd Abrams, who represented Miller, the Times, and, initially, Time magazine, why the atmosphere is so different now than during the Anita Hill investigation, in which he also fought. Abrams has a dog in this fight, of course, but he is still the dean of the First Amendment lawyers. "Some journalists think the wrong people are getting protection," he said. "That's the most dangerous thing of all. Worse than the changes in the law, worse than grand juries going after journalists, is the image of some journalists making such decisions based on a political rather than a journalistic basis. Certainly a lot of the criticism of Judy Miller within the journalistic community is at its core political. There is an extraordinary animus. It's very hard for me to believe that animus would exist if she were protecting different people in a different administration with different views of the war in Iraq."

Abrams's legal strategy has been justly criticized, but he is exactly right in identifying how political motives have perverted the practice of journalism and made it harder for reporters to protect their sources.

It's astonishing to think that a substantial number of journalists cheered on the appointment of a special prosecutor to investigate government officials for allegedly giving accurate information to reporters. Since the days of Vietnam and Watergate, newsmen have proclaimed an ideal of "adversarial journalism." In this case, too many of them were adversaries first, journalists second--but for that, real journalists will pay the price.