Billmon's interesting post on the threat of criminal contempt faced by Judith Miller and his rethinking on the reporter's privilege got me to rethinking and, unlike Billmon, reiterating my view that, to the degree Miller is protecting the identity of a source and what the source said to her, I think she does the right thing on principle - going to jail to protect her source. Let me be clear, I think, under the CORRECT rule of law (IMO of course), as stated by Judge Tatel in his concurring opinion in the DC Appeals Court decision, Miller was jailed appropriately, due the balances involved.
Billmon however, now seems to have doubts about the privilege:
I've always been an absolute supporter of the duty -- not the right, but the duty -- of reporters to protect their sources. There was a time when I would have been an equally unthinking, knee-jerk supporter of a federal shield law. But, after what's come to light about the Rovians and their cozy little circle of journalistic collaborators, I have to think about it.
Left to their own devices, corporate journalists seem increasingly inclined to act as an arm of the government, not a watchdog of it. Which means the licence granted by the traditions of the profession -- which in some ways extend even further than the legal rights guaranteed by the First Amendment -- can and are being used against the public interest, not to protect it. We seem to have run into yet another variation on the old Roman question: Quid custodiet ipsos custodes? Who shall watch the watchers?
I'll tell you why I think Billmon is overreacting on the flip.
I think the events do no merit this reaction. Indeed, the views expressed by Billmon previously are perfectly consistent with that view. Look what Billmon says:
If Miller really is protecting a source who gave her accurate information upon an absolute guarantee of confidentiality, she could wear that conviction as a badge of honor -- even if it's Karl Rove she's protecting.
If, on the other hand, Miller is protecting a source who lied to her -- say, by telling her that Valerie Plame "authorized" Wilson's trip to Niger -- then she deserves to be held in contempt -- morally as well as legally. And if Judy revealed Plame's status as a NOC to anyone not legally authorized to know it, she deserves a nice long stretch in a federal pen for espionage.
Finally, if Plame herself was a confidential source of Miller's, and Judy betrayed her to the Rovians, then she doesn't deserve prison -- she deserves to be drawn and quartered, at least from the perspective of journalistic ethics.
But this strikes me as completely right AND also consistent with support for the privilege and a reporters' duty to protect his sources.
Which brings me to MY adjustment in thinking. It is becoming increasingly likely that Miller's refusal to testify is more related to what SHE SAID to other people, not what people said to her. If that proves true, then, to me, Miller's invocation of the privilege is craven, outrageous and unethical.
Tim Russert has been, in my opinion, unfairly ridiculed for striking a deal with Fitzgerald to testify as to what HE said to a source, and to NOT testify about what the source told him. If Russert could discuss his statements without identifying his source, then that would be perfectly consistent with a reporter's duty to his source, which is to NOT reveal the identity of the source. It does NOT cover what the reporter said to the source UNLESS that information would reveal he source or compromise some other promise.
