Yeah, I'm going to harp on this some more. Mostly because issues where there is a genuine difference of opinion are much more interesting than our usual debates of "Bush sucks!" "No, you're wrong! Bush sucks sweaty donkey balls." (By the way I fall into the latter camp on that one)
Armando, Susan and MB and many commenters have made many thoughtful and impassioned arguments about the repercussions of the Miller case. The biggest one is that this will discourage informants from bringing forth information that the public should know. I'm not buying it
The strange thing is that courts and newspapers serve the same essential function - to uncover the truth. Any argument for confidentiality must be based on the search for truth. I have a few questions for Miller's defenders (OK, OK - they're not actually defending Miller, but to make their case that is exactly what they must do) . . .
Here are the questions that I have yet to see answered:
1) What public good is served by allowing Miller to keep her conversations about Wilson's wife from the public and the courts?
The answer I've seen most often is that it will have a "chilling effect" on confidential informants. Yet the fun thing about slippery slope arguments is that they can apply to any situation. Every attorney who helps a client commit a fraud can claim that compelling his testimony will have a chilling effect on attorney-client relations. And you know what, he's be right. The scope just needs to be narrowed down a bit more - rather it would have a chilling effect on those clients who seek an attorneys aid in committing a fraud, but when phrased that way it's not such a bad thing. The question that must be asked with every assertion of privilege is whether the public is better served by allowing the privilege in this case or by denying the privilege.
Meteor Blades brought up a specific example from his experience:
A (now-dead) government employee passed along a copy of a classified study and accompanying memoranda regarding cancer studies of workers at the Rocky Flats Nuclear Weapons plant. This leak was a crime. And the leaker had an unrelated gripe against the boss, so the leak was motivated as much by that as any motive to give me data for the "public good."
What the documents showed - and I published - was that government officials and Rockwell International bosses were saying publicly that machinists at the plant actually had fewer cancers than a control sample of the general population. What was not said publicly, but what the documents leaked to me showed, was that brain cancers and testicular cancers were a couple of magnitudes higher than in the general population.
Now what was the benefit of keeping the leaker secret in this case - exposing a serious risk to public health that was being ignored by the plant owners. Wow, that's a pretty good reason to allow MB to assert the privilege, especially when weighed against whatever law said that the leaker couldn't do this. It's pretty clear where the public interest lies.
But what about gray areas? Well, that's why we have judges. I don't think any shield law could ever be drafted that set down concrete rules that both protected reporters and prevented abuses of the privilege. These sort of decisions can only be made on a case by case basis with attention to the facts before the judge.
While I'm at it, Miller has not been convicted of a crime, she has been asked to tell the truth and she holds the keys to her release. If her testimony incriminates her she, like the rest of us, can take the 5th. No she has refused to answer any questions despite a judge and appeals court telling her that the public has a right to know what she knows about this. Considering that someone compromised government attempts to locate and secure WMDs she'd better have a good reason for keeping quiet.
So let's look at this as citizens, what public good comes from her keeping quiet about this. The original purpose of the leak was to show that Wilson's wife got him a job investigating the yellow cake claim. Good now the public knows that there is cronyism in Washington! OMG breaking news, cronyism in Washington!!11oneone! Alert the media! Cats and dogs living together! </snark>
As I said the burden is on MB, Armando and Susan, et al to show how the public is served by hiding the truth in this case. On to the second question.
2. If the court should uphold Miller's assertion of privilege in this case, when can a journalist be compelled to divulge the identity and conversations with a source?
Give me a factual scenario when it is OK to compel a journalist to testify against their wishes. Because as far as I can tell outing a CIA agent for political payback is a pretty bad thing and the person who did it should be brought to justice. If the public interest does not override the privilege here, when would it?