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WASHINGTON - The Supreme Court ruled against The New York Times on Monday, refusing to block the government from reviewing telephone records of two Times reporters in a leak investigation concerning a terrorism-funding probe.

The one-sentence order came in a First Amendment battle that involves stories written in 2001 by Times reporters Judith Miller and Philip Shenon. The stories revealed the government's plans to freeze the assets of two Islamic charities, the Holy Land Foundation and the Global Relief Foundation.

U.S. Attorney Patrick Fitzgerald is trying to track down the reporters' confidential sources for the stories. Fitzgerald's spokesman, Randall Samborn, declined to comment on the Supreme Court's order.

Back last year when we were all dreaming of Fitzmas, Armando notably, along with others, went against the grain, arguing that jailing Judy Miller for CIA/Plame, would be a bad idea, and set a lousy precedent that would chill freedom of speech. In this front page post and others, Armando layed out the slippery slope case of Judy Miller being jailed, and what could follow after. It's ironic in a way, that it is Fitzgerald again, and once more Judy Miller proving Armando prophetic.

I was one of the ones screaming at Armando that basically, Judy deserved it. It was shortsighted. Fitzgerald went out like a lamb on Fitzmas, with only freaking Scooter Libby suffering any potential consequences, and now he is combing through legitimate contacts by the members of the press and the Supreme Court just validated it.

In retrospect, it seems like quite the faustian bargain to get Scooter's head on a pike in exchange for the government to be able to chill free speech between sources and journalists. Are they going to have to meet in parks, go to letter drops, or meet in smoky bars to actually reveal information to reporters that the public should know? The chilling effect of this ruling, and Fitzgerald's campaign on this issue will make the already docile media needing a doctor on hand to continually check for a pulse.

Judy Miller's phone records should not be revealed. Patrick Fitzgerald is wrong. There, I said it. Now, I can go back to hating the neo-con princess for her many flaws. But, would any of the plamegate afficianados want to comment on if they think it was now worth it? Was getting Scooter Libby in court worth what Fitzgerald is NOW doing?

Originally posted to trifecta on Tue Nov 28, 2006 at 06:06 AM PST.

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Comment Preferences

  •  Tip Jar (15+ / 0-)

    For me, this is egg on the face. Armando is/was well smug and obnoxious. Judy Miller, is Judy "I was fucking right" Miller.

    It pains me to defend Miller especially. But this is a reality based world here.

    Don't like crooks in D.C.? Vote Against Charles Taylor (NC-11) who is one of them.

    by trifecta on Tue Nov 28, 2006 at 06:04:55 AM PST

    •  Holding my nose (3+ / 0-)
      Recommended by:
      trifecta, sobermom, Empower Ink

      because I cannot stand that woman (heh)and agreeing with Armando's 'crux of the matter' statement:

      The point of this struggle is to make sure that people with critical information can feel confident that if they speak to a reporter on the condition of anonymity, their identities will be protected. No journalist's promise will be worth much if the employer that stands behind him or her is prepared to undercut such a vow of secrecy.

      Having to choose between unfettered freedom of the press and bringing this criminal administration to justice is one hell of a choice.
      Hope you don't get slammed too badly, 'cuz you've taken a (probably) unpopular, but IMHO ultimately right stance here.

      Investigate. Subpoena. Impeach. Rinse. Repeat...

      by Lisa Lockwood on Tue Nov 28, 2006 at 06:12:48 AM PST

      [ Parent ]

    •  A tip for your pain ... and mine! (2+ / 0-)
      Recommended by:
      trifecta, sobermom

      "Boy, I sure called that one wrong" is one of the hardest things to say. I much prefer to slink away in silence and hope no one notices.

      So I have to applaud you, and I will also "un-slink" and admit it -- I called that one wrong, too.

      But I sure did enjoy the drama queen in jail and getting her comeuppance from the NYT. Is that allowed, LOL?

      America will never again be the land of the free... Until she again becomes the home of the brave.

      by Ducktape on Tue Nov 28, 2006 at 06:20:15 AM PST

      [ Parent ]

  •  Completely disagree... (5+ / 0-)

    ..in this case, where a reporter has tipped somebody off to an investigation, there should be no protection of sources. This is a direct crime. This isn't something where a reporter reports on something and wants to keep the source safe from repercussions as in the Libby trial.

    It isn't even an issue of sources. Somebody called up a reporter to tell them of an investigation and that reporter went straight out and potentially killed the investigation by asking for a comment. This should not be protected under freedom of speech and it doesn't put in danger press privileges, where a crime has not directly been committed.

    •  How far do you want to take it? (0+ / 0-)

      I am sure that the administration would love to know who leaked the NSA story? That was a crime to do so, and the leaking of it could have caused further crimes to be committed. The administration could argue that any terrorist attack that occurs in the world could have been thwarted with the NSA program unreported upon.

      So, we have Judy Miller leaking Valerie Plame, which is bad. We have Miller and Philip Shenon reporting on a government crack down on Islamic charities, not as bad, but possibly very bad.

      The Supreme Court set a precedent here on this one. There are alot of gray area things reporters work on. They get fed classified information. Alot of information is classified only to prevent exposure for questionably legal or upopular/immoral conduct.

      Are you suggesting that the Roberts/Scalia/Thomas/Alito court is just going to do nuance here with the government subpoena of reporters phone records?

      Don't like crooks in D.C.? Vote Against Charles Taylor (NC-11) who is one of them.

      by trifecta on Tue Nov 28, 2006 at 06:22:53 AM PST

      [ Parent ]

      •  I am not suggesting anything that even resembles (0+ / 0-)

        that.. like abortion, we cannot legislate across the board in sweeping a general laws. Abortions should be taken on individual case basis, by experts, doctors.

        In press freedoms, it also should be taken on a case by case basis, as it is now. A judge ruled than in this case the NY times does not have the freedom to hide the records, and i personally agree. This doesn't however mean that now any prosecutor will be able to request any records they want and get them.

      •  Correction? (5+ / 0-)

        Judy Miller did not leak Valerie Plame.  Robert Novak leaked Valerie Plame.

        Judy Miller did a lot of other things, including possibly being a CIA plant herself.  But she was not the press leak.  She was a witness to the press leak.  

        If a reporter witnesses a murder, and sees who shot the guy, can she keep that from the police - even if she doesn't write about it - just because she's a journalist?  I wouldn't think so.  So I support requiring her to reveal her sources in the Plame case.

        In the case of the current stories, I think a case could be made that she committed a crime.  Go back to the murder analogy.  Judy went up to Vinnie the Strangler and said "So Vinnie, do you have any comments before the police arrest you today?"  That would be interfering with a police investigation.  Likewise for spilling the beans about the Islamic "charities."  

        Fitz wants her sources because he thinks there's a possibility that a crime (interfering with the investigation) was intentionally committed, with Judy's participation.

  •  The problem is (6+ / 0-)

    Judith Miller is not a journalist, she's a government propagandist.  The First Ammentdment is supposed to protect the people from the government, not vice versa.

    "He had, in fact, got everything from the church and Sunday School, except, perhaps, any longing whatever for decency and kindness and reason." Elmer Gantry

    by MadRuth on Tue Nov 28, 2006 at 06:20:20 AM PST

    •  In this particular case (1+ / 0-)
      Recommended by:
      vcmvo2

      She was leaked something the government did not want out. Do you want a special rule that says we can only go through Judy Miller's records, because that for sure is not going to happen.

      The problem with free speech/press freedom cases, a problem that the ACLU runs into alot is that it often isn't the pure driven snow people that you end up defending.

      Judy Miller is a piece of crap journalist. That is why it's easier to go after her first. Then it becomes acceptable to go after everybody.

      Don't like crooks in D.C.? Vote Against Charles Taylor (NC-11) who is one of them.

      by trifecta on Tue Nov 28, 2006 at 06:25:18 AM PST

      [ Parent ]

  •  Possibility that cannot be named (2+ / 0-)
    Recommended by:
    swinginvoter, corvo

    The possibility that cannot be named, of course, is that Fitzgerald was appointed as the Republican clean-up man all along.  A scapegoat was required, so one was chosen, but other than that all the rest is and ever will be silence.

    sPh

  •  Gravity and Freedom of the Press (4+ / 0-)

    You seem to be imposing a law of nature on Freedom of the Press.  IMHO, press freedom is not inviolable.  Judy Miller used her position as a journalist to conduct unethical, possibly criminal behavior.  Should we reward this behavior?  And, she has done it more than once in several different high profile cases.  What does that say about Judy Miller?  The woman is a Tasmanian Devil of the press, eating up every opportunity to do whatever her zeal tells her to do.  
    I haven't read the opinion but I am guessing that the judges can discern a difference between trying to get away with a crime and protecting press freedom.  
    Editors beware.  

    -3.63, -4.46 "Choose something like a star to stay your mind on- and be staid"

    by goldberry on Tue Nov 28, 2006 at 06:34:21 AM PST

  •  Several points (14+ / 0-)

    First, you might check with the folks defending Judy back in the day, because several of them have conceded they were wrong in their arguments.

    Second, a few details about this case. Judy first tipped one charity by asking about the impending raid. Then she passed on news of an impending raid to Shenon, who did the same thing--asked about the impending raid rather than, say, whether it had any ties to Hamas. Now perhaps this was a legitimate leak. Doesn't sound like it to me, though.

    Now Fitzgerald is not going to reveal this source unless a crime was committed. He is using the grand jury process (and was, in the Plame case) to determine whether a crime was committed and only then will the source become public. (You might ask yourself who Walter Pincus' source is. Don't know? That's because the GJ process worked; Fitz determined no crime was committed and moved on.)

    Finally, I'll share one sentiment Judge Tatel offered in his opinion rejecting Miller/Cooper's efforts to quash their subpoena in Plame. He noted that it is in the public good to silence these leaks. That is, if some Neocon thug thinks twice about leaking criminal information to Judy, all the better.

    Oh. And one more thing. Have you noticed how Tim Russert still gets to sit down with Dick Cheney every quarter? Notice how Walter Pincus continues to do great reporting relying on anonymous sources? Even Bobby Novak keeps getting fed the trash he thrives on. These people all said they'd lose their leaks and their access if they testified in the Plame case. Hasn't happened.

    This is the way democracy ends Not with a bomb But with a gavel -Max Baucus

    by emptywheel on Tue Nov 28, 2006 at 06:39:15 AM PST

    •  Thanks for the details (0+ / 0-)

      If you see my post below you will see that I was hoping for posts like this to lend insights.

      One question though. If we accept for the sake of arguement that Fitzgerald is on solid ground, and that he acted ethically, can we still assume that the precedents set do not carry grave danger? For example, if the likes of Ken Starr got information about Pincus' source, are you sure he would have moved on?

      •  Process (8+ / 0-)

        While not infallible, what all of these cases argue for is process.

        Fitz subpoenaed Miller and Cooper. A court judged that the grand jury investigation was operating in good faith, there was a probability a crime had taken place, and that Fitz had exhausted all other methods to collect this information. Then Miller and Cooper appealed. A second court ruled the same thing. Then they appealed again, and a third court decided it had no reason to doubt the first two courts' rulings.

        Same thing happened here, though the first court wasn't so sure a crime had taken place.

        In one of the rulings on the Plame case, the judge asked, "well, if we can't use the grand jury process to determine if a crime took place, then what can we use."

        So to answer your question--no, Ken Starr almost certainly would have leaked the source for Monica's blue dress stain. Starr, like Fitz, is an extreme case (though in opposite directions). But there is this whole process available before the prosecutor even gets a peak at the source. That judicial review is not perfect, but insofar as it's not, it's another question entirely. We need both our journalists and our judicial review to behave more responsibly. But in the same way we wouldn't consider throwing out the journalists because they SUCK, we shouldn't throw out all judicial review because it is sometimes overly partisan.

        This is the way democracy ends Not with a bomb But with a gavel -Max Baucus

        by emptywheel on Tue Nov 28, 2006 at 06:58:35 AM PST

        [ Parent ]

    •  A clarfication (1+ / 0-)
      Recommended by:
      emptywheel

      At least for me, I was not wrong on the principle, I was wrong on Miller.

      She was not acting journalistically and therefore was not able to invoke the privilege.

      She lied and hurt the principle.

      There was a lot of detail in my argument that in the end, en drsed Tatel's argument. My beef was that Tatel's was not the opinion of the Court.

      And of course,  thought Milr was defending principle.

      She was not.

      Thus I was wrong to defend HER , not the principle.

      •  Wasn't thinking of you (1+ / 0-)
        Recommended by:
        SarahLee

        But what you write is, again, a good reason for judicial review. I keep thinking--who do you trust more, Howell Raines, or 12 grand jurors, a prosecutor, a set of guidelines, and a bunch of judges?

        One more interesting factoid. In October 2004, just at the the the NYT was accusing Fitzgerald of being a runaway prosecutor, they published an editorial that named Scooter Libby as Miller's source. From that point forward, all they were protecting was her ability to avoid incriminating Libby.

        This is the way democracy ends Not with a bomb But with a gavel -Max Baucus

        by emptywheel on Tue Nov 28, 2006 at 07:39:04 AM PST

        [ Parent ]

    •  There are reporters who do great (0+ / 0-)

      work in Iraq, even though they could be killed at any moment, and who do great work in North Korea, even though their sources could probably be thrown in prison for telling a reporter the time.

      But I think it's wrong to make light of the effects of restrictions and scary court cases on freedom of the press. Even if you still see some hard-hitting stories based on anonymous sources appearing, you have no idea how many stories got spiked because reporters and editors were scared.

  •  Why defend either of them? n/t (0+ / 0-)
    •  Because the precedents set here may (0+ / 0-)

      be used to destroy the Seymour Hersh's, Keith Olbermanns and Markoses of the world as well as the reporters you don't like.

      Example: Do you want a wingnut prosecutor somewhere to be able to use allegations that Markos violated the letter of some foolish law as a crowbar to get into the user account data for all Daily Kos users?

      If we only defend freedom of the press when the press is our press, there will be no freedom of the press. If we want freedom of the press, we have to defend the National Review as vigilantly as we defend the Nation.

      Furthermore, we cannot simply say, "The law is the law, and the law must be obeyed," when considering these issues.

      We must respect the human-made law. We cannot violate human-made laws for trivial reasons. But we have to consider the motives of the people who enacted laws, the actual effects of the laws, and the motives of the people who are violating laws when looking at all of this. If, for example, Congress passed a law stating that Markos would have to turn all user account data over to the FBI, I hope he would disobey that law. If Congress passed a law stating that RedState users or Daily Kos users should be put on prison camps, I hope we would take whatever actions we could think to change and violate that law.

  •  Pleased to see your diary on this (0+ / 0-)

    After reading about the decision this morning, I was wondering why I have not been seeing more dialogue about this.

    Whether or not this is a good or bad decision (I do not feel either expert enough or informed enough to offer a considered opinion at this point), the matter certainly falls into an important area that merits discussion and analysis. Though the decision was recent, the story and the issues it speaks to have been out there for some time.

    I am concerned about the lack of dialogue and analysis about this. Is it possible that because Patrick Fitzgerald became a darling of the left because of Plamegate, certain quarters have not been taking a hard look at him regarding press protections and freedoms?

  •  Slippery slope in the other direction (3+ / 0-)

    I disagree with this assessment, and Armando didn't necessarily agree that Miller was protecting her First Amendment rights.

    There is a First Amendment protection for journalists who are reporting.

    There is NO First Amendment protection for criminal behavior, which in Miller's case may be accessory to a crime. [Branzburg v. Hayes, 408 U.S. 665 (1972)]

    The question here is whether Miller is an accessory to a crime.

  •  These threads always get lawyery, (0+ / 0-)

    and Judy Miller has always been a lightning rod around here, but I think that generally, it's almost always a bad thing to have government lawyers poring over reporters' phone records--no matter what the circumstances, no ifs, ands or buts about it. Doesn't matter if a crime was committed, doesn't matter if the reporter was an administration lapdog. I will always come down on the side of making it easier for a reporter to do his/her job, especially these days. Additionally, I will always come down on the side of making it easier for a source to contact a reporter, not harder or more perilous.

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