Cross-posted from, um, well, a new blog.
The Nation columnist David Corn, in his Feb. 24th article, suggests, inter alia, that calls for Plame Affair investigator Patrick Fitzgerald to subpoena Talon News "reporter" James Guckert, a.k.a. "Jeff Gannon," may endanger the media's First Amendment protections. I think he's got it backwards.
Corn jumps into his free press arguments by starting with an examination of the likelihood that Guckert's implication that he had somehow gained access to a State Department Bureau of Intelligence and Research (INR) memo claiming that Valerie Plame was in fact behind her husband, Ambassador Joseph Wilson's, assignment to the yellowcake case. Specifically, the likelihood that his knowledge of the memo could instead have come from reading an earlier-published
Wall Street Journal article.
In much the same fashion as our own Categorically Imperative (see that link for specifics on the "similarities" Corn refers to), Corn compares the wording in the Journal's article to the wording of Guckert's questioning of Wilson in the interview of October 28, 2003:
Note the similarities. To ask the question Gannon/Guckert posed to Wilson, he did not need to possess that memo. He only needed to have read the Journal. It's possible he was leaked the same document. But the simpler explanation appears to be he saw it in the Journal. After all, if the White House--or Republicans on Capitol Hill--wanted to leak anti-Wilson material, they had plenty of better options than a fellow who worked for a piddling news service.
These similarities, those of you who followed the link to the comments to Categorically Imperative's diary will note, are very telling to me, and I agree with Corn's conclusion that it's very likely that Guckert cribbed his "knowledge" of the alleged memo (which few if any have actually claimed to have seen either in its original form or a true copy of) from the Journal. But Corn next takes a turn with which I disagree:
Nevertheless, Gannon/Guckert's critics have called for Fitzgerald to chase after him. Most recently, Representatives Louise Slaughter and John Conyers, two liberal Democrats, have written Fitzgerald and asked him to subpoena the journal Gannon/Guckert kept while he worked at the White House for Talon. (Gannon/Guckert resigned from Talon after the scandal broke.) In their letter, the House members characterize Gannon/Guckert as "a person in the White House briefing room who had access to a memo revealing the [CIA's] operative's name." They note that "Mr. Guckert had access to classified information." This description is misleading. Valerie Wilson's name had been disclosed months earlier--not by this memo. And, as noted above, it is uncertain--perhaps unlikely--that Gannon/Guckert had access to this memo. Still, they have egged on Fitzgerald to subpoena Gannon/Guckert's notes.
This would be a terrible move. Fitzgerald is already trying to destroy the ability of reporters to obtain information from confidential sources. He has subpoenaed Matt Cooper of Time magazine and Judith Miller of The New York Times and requested they identify sources. An appeals court recently ordered the pair, who have so far resisted, to cooperate. The case is heading toward the Supreme Court--which is not expected to be kind to the journalists--and Cooper and Miller could end up in jail. Now Slaughter and Conyers want to compound the damage FItzgerald is doing to journalism by pushing him to subpoena a reporter's notes. Fitzgerald should not be encouraged--especially when the case is weak that Gannon/Guckert had any access to classified information.
Here, I think Corn's analysis is arguably backward. This particular case, as I mentioned in an earlier thread, pits the First Amendment against itself, an easy way to lose your place in the argument, as I maintain Corn has done:
Will [the journalists in question] testifying have the effect of making people less likely to leak governmental abuse? Hard to tell directly from this case, since the leak itself was a governmental abuse.
The problem here is that the one who "leaked" governmental abuse was Wilson. The leaks from the sources Miller is protecting sought to chill Wilson's right to leak governmental abuse.
So, how do we answer that one?
For myself, understanding that the Bill of Rights reserved the rights of individuals against state action, I side with the free speech claims of the individuals, and disclaim the government's attempt to attach to itself rights that the First Amendment intentionally removed from its reach and reserved to the people. |
So my take on things is that I agree with Corn that Guckert probably was blowing smoke about that memo, and just cribbed it from the Journal. But when it comes to questions of classified information, you're going to want to be sure, and that's somethng that a thorough investigation can decide more definitively than can an educated guess. Further, I disagree with his doomsaying about what it means if Fitzgerald subpoenas Guckert, or indeed if he ultimately succeeds in forcing the testimony of Miller and others.
My argument is that the free press protections established in the Constitution were established for the purpose of protecting individuals (i.e., members of the press, and by extension, their sources) against the power of the federal government. But the argument being made by Miller and other journalists under investigation by Fitzgerald stands that on its head, claiming instead that the government is entitled to invoke free press protections to defend itself against critics.
This is completely backwards. The right to a free press was always meant to afford protections to private citizens, who are at a natural disadvantage vis-a-vis the government when it comes to getting their message out to the public. Not only does the government actually have a built-in advantage in that respect, but it also has a tremendous advantage in its ability to make the expression of dissident viewpoints difficult for private citizens, an advantage that comes from being the government. Private citizens, on the other hand, have no ability to make it difficult for the government to make its voice heard. Consequently, no need for Constitutionally-derived free speech protections for the government.
Journalists certainly must jealously guard the free press protections they enjoy, but in this case, the sources Miller and others are protecting are not private citizens, subject to the possible abuse of power by the government, but rather the government itself, seeking to use free press protections to shield itself from exposure in a plot to silence private citizens.
This stands free press protection on its head, and to me (admittedly not a journalist), journalists are better served by agreeing that in a head-to-head contest between a governmental source (acting malevolently on behalf of that government) and a private source (acting in contravention to the government), the private citizen's rights ought to be afforded the greater weight.