TCS Daily

The Gray Lady's Dishonesty

By Michael Rosen - July 14, 2005 12:00 AM

As the national "paper of record", the New York Times has obligations not only to its readers, its writers, and its sources, as well as its brothers-in-arms in the worldwide media, but to all Americans. Devotees of the Times are invited to place their trust in the paper's reports, its editorials -- and its integrity.

It's a shame, then, that the paper has gone so far out on a limb in the recent Joseph Wilson-Valerie Plame affair in naked pursuit of two paramount objectives, to the exclusion of all others: uncompromisingly defending the inviolability of reportorial privilege and relentlessly excoriating the Bush administration.

But strangely enough, in this case, it turns out that the two objectives are fundamentally at loggerheads. In order for the administration to "do the right thing," in the eyes of the fabled Gray Lady, it must conduct a thorough investigation of whether a government official, in mid-2003, knowingly leaked to the media the identity of Plame, said to be a covert CIA agent at the time. Yet in order to uncover the leaker, federal investigators must interrogate the most relevant witnesses to the alleged crime, namely the recipients of the leaks.

This paradox has forced the Times -- and other liberal papers and commentators -- to turn linguistic and logical cartwheels when justifying their statements and actions. Thus, investigators under the guidance of the prosecutor, former United States Attorney Patrick Fitzgerald, are enjoined to suss out any and all violations of the law and to bring the perpetrators to justice. The administration is called upon to take all necessary measures to comply with the law.

But -- and here's the rub -- journalists need not comply with the legal prerogatives of the investigators, says the Times, even if the Supreme Court itself declares that they must. This disconnect -- in which the paper seems to believe that it and its reporters are above the law -- will erode the trust that the public vests in Big Media.

To be sure, the Times appears at least to recognize the potential for hypocrisy or self-contradiction in its statements. In its first editorial on the issue [indirect link], the paper lavished attention on the specter of a whitewash, since the investigation was to be conducted by the Justice Department of John Ashcroft, ostensibly the President's lackey. The Times then opined that while it opposes leak investigations in general, there might be cause for an exception in the Wilson-Plame situation, which the paper likened to disclosing troop movements during war.

However, the editorial continued, because Congress barred the prosecution of any journalist who obtained the name of a covert operative from a government official, the "Bush administration should not use the serious purpose of this inquiry to turn it into an investigation of...any...journalist, or to attempt to compel any journalists to reveal their sources."

Leave aside, for the moment, the backwardness of the Times' logic (the fact that Congress exempted journalists from liability, without shielding them from investigative pressures to divulge their sources, if anything reinforces their obligation to comply with prosecutors). More important is that the horns of the dilemma are on display for all to see: on the one hand, the sheer importance -- indeed, the implications for our very national security! -- of this investigation; on the other, the inoculation of reporters from prosecutorial probing.

But the very nature of the "crime" here renders the Times' position absurd: the actions in question inherently involve revealing sensitive information to journalists. Congress has criminalized a very specific category of speech, speech that has effectively lost its protected status.

By analogy, a client generally owns a privilege in any communication he imparts to his attorney. But if, for example, he specifically informs his lawyer that he intends to kill someone imminently, the attorney must break her client's confidence and report him to the authorities.

Here, in a federal investigation, there exists no such reportorial privilege (although there are moves afoot to establish one). Regardless, if one existed, it would and should not cover the conduct in question. The (alleged) speech is itself the crime; its only witnesses are the accused and the reporter. But the Times seeks to kneecap the prosecution by sequestering these witnesses.

Such muddled reasoning and empty posturing does nothing to endear the paper, or Big Media in general, to the news-consuming public. Increased reliance on blogs and talk radio -- generally more transparent and less pompous modes of communication -- will likely result from the kerfuffle, as will diminished belief that the Times has the country's best interests in mind.

Of course, not every liberal newspaperman condones the Times' approach. Michael Kinsley, head honcho of the Los Angeles Timesยด editorial page, lit into the Gray Lady in a recent piece. And some conservatives have been a bit too eager to exonerate Karl Rove (who has been implicated as a source of some information by one reporter) or to slam Judith Miller (who now sits in an Alexandria, VA, prison for refusing to disclose her source(s)). Nevertheless, the Times (of New York) has gotten far too overheated about both the investigation and the endangerment of journalistic privilege.

Emblematic of the Times' inconsistent approach is its conclusion in Wednesday's editorial: "Mr. Rove could clear all this up quickly. All he has to do is call a press conference and tell everyone what conversations he had and with whom. While we like government officials who are willing to whisper vital information, we like even more government officials who tell the truth in public."

The first part of this quote is troublesome enough. Rove has reportedly already given blanket permission for any journalist to disclose to prosecutors the content of their conversations with him about the issue; even if the Times is correct in dismissing such waivers as coerced, why is editorial coercion any less offensive than the prosecutorial version? The paper seems to believe it's alright to pressure a governmental official to publicly disclose matters under (secret) grand-jury investigation, but it's anathema to ask a journalist to comply, confidentially, with the same investigation.

But worse is the second part. The Times, like all newspapers, trades in "whisper[ed] vital information" as a mechanism for ensuring that officials -- from Rove to Wilson -- "tell the truth in public." Why, then, is it so reluctant to ensure the integrity of an investigation designed to do just that? What we Americans like are reporters -- and newspapers -- with a similar allegiance to seeking the truth.

Michael M. Rosen, a TCS contributing writer, is an attorney in San Diego.


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