Arresting Journalists in USA

[Ivo Skoric]

Looming totalitarian state...

http://www.nytimes.com/2004/10/10/opinion/10sulzberger.html

October 10, 2004
The Promise of the First Amendment
By ARTHUR OCHS SULZBERGER JR., chairman and publisher, and RUSSELL T.
LEWIS, chief executive, The New York Times

Last Thursday, a federal district judge ordered a New York Times
reporter, Judy Miller, sent to prison. Her crime was doing her job as
the founders of this nation intended. Here's what happened and why it
should concern you.

On July 6, 2003, Joseph C. Wilson IV - formerly a career foreign
service officer, a chargé d'affaires in Baghdad and an ambassador -
wrote an article published on this page under the headline, "What I
Didn't Find in Africa." The article served to undercut the Bush
administration's claims surrounding Saddam Hussein's nuclear
capacity.

Eight days later, Robert Novak, a syndicated columnist, wrote an
article in which he identified Ambassador Wilson's wife, Valerie
Plame, as an "operative on weapons of mass destruction" for the
C.I.A.
"Two senior administration officials told me," Mr. Novak wrote, that
it was Ms. Plame who "suggested sending Wilson" to investigate claims
that Iraq had tried to purchase uranium ore from Niger. After Mr.
Novak's report, several other journalists wrote stories in which they
said they received similar information about Ms. Plame from
confidential government sources, in what many have concluded was an
effort to punish Mr. Wilson for speaking out against the
administration by exposing his wife as a C.I.A. operative. The record
is clear, however, that Judy Miller is not one of those journalists
who reported this information.

Because the government officials who revealed Valerie Plame's status
as a C.I.A. operative to the press might have committed a crime in
doing so, the Justice Department opened a federal criminal
investigation to find whoever was responsible.

During the course of this investigation, the details of which have
been kept secret, several journalists have been subpoenaed to provide
information about the source of the leak and threatened with jail if
they failed to comply.

On Aug. 12, Ms. Miller received a subpoena in which she was required
to provide information about conversations she might have had with a
government official in which the identity and C.I.A. connection of
Mr.
Wilson's wife might have been mentioned. She received this subpoena
even though she had never published anything concerning Mr. Wilson or
his wife. This is not the only recent case in which the government
has
subpoenaed information concerning Ms. Miller's sources. On July 12,
the same prosecutor sought to have Ms. Miller and another Times
correspondent, Philip Shenon, identify another source. Curiously,
this
separate investigation concerns articles on Islamic charities and
their possible financial support for terrorism that were published
nearly three years ago. As part of this effort to uncover the
reporters' confidential sources, the prosecutor has gone to the phone
company to obtain records of their phone calls.

So, unless an appeals court reverses last week's contempt conviction,
Judy Miller will soon be sent to prison. And, if the government
succeeds in obtaining the phone records of Ms. Miller and Mr. Shenon,
many of their sources - even those having nothing to do with these
two
government investigations - will become known.

Why does all of this matter? The possibility of being forced to leave
one's family and sent to jail simply for doing your job is an
appalling prospect for any journalist - indeed, any citizen. But as
concerned as we are with our colleague's loss of liberty, there are
even bigger issues at stake for us all.

The press simply cannot perform its intended role if its sources of
information - particularly information about the government - are cut
off. Yes, the press is far from perfect. We are human and make
mistakes. But, the authors of our Constitution and its First
Amendment
understood all of that and for good reason prescribed that
journalists
should function as a "fourth estate." As Justice Potter Stewart put
it, the primary purpose of the constitutional guarantee of a free
press was "to create a fourth institution outside the government as
an
additional check on the three official branches."

The founders of our democracy understood that our government was also
a human institution that was capable of mistakes and misdeeds. That
is
why they constructed a First Amendment that would give the press the
ability to investigate problems in the official branches of our
government and make them known to the public. In this way, the press
was sensibly put in a position to help hold government accountable to
its citizens.

An essential tool that the press must have if it is to perform its
job
is the ability to gather and receive information in confidence from
those who would face reprisals for bringing important information
about our government into the light of day for all of us to examine.
Without an enforceable promise of confidentiality, sources would
quickly dry up and the press would be left largely with only official
government pronouncements to report.

A quarter of a century ago, a New York Times reporter, Myron Farber,
was ordered to jail, also for doing his job and refusing to give up
confidential information. He served 40 days in a New Jersey prison
cell. In response to this injustice, the New Jersey Legislature
strengthened its "shield law," which recognizes and serves to protect
a journalist's need to protect sources and information. Although the
federal government has no shield law, the vast majority of states, as
well as the District of Columbia, have by now put in place legal
protections for reporters. While many of these laws are regarded as
providing an "absolute privilege" for journalists, others set out a
strict test that the government must meet before it can have a
reporter thrown into jail. Perhaps it is a function of the age we
live
in or perhaps it is something more insidious, but the incidence of
reporters being threatened with jail by the federal government is on
the rise.

To reverse this trend, to give meaning to the guarantees of the First
Amendment and to thereby strengthen our democracy, it is now time for
Congress to follow the lead of the states and enact a federal shield
law for journalists. Without one, reporters like Judy Miller may be
imprisoned. More important, the public will be in the dark about the
actions of its elected and appointed government officials. That is
not
what our nation's founders had in mind.


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