Quasiblog: Who Ya Gonna Call!

Tom Maguire makes The Case Against "Me-Too" Journalism, pointing to the hazards of reporters using other reporters' stories as sources. He closes by reiterating what has become a central question in the Valerie Plame affair: "what about the public's right to know?" His take on commonplace recycling in the press suggests that there are other questions we should be asking too. In practice, "the public's right to know" is often more convenient can opener than principle. The same can be said for the protection of anonymous sources. The putative principle is that anonymity makes whistle-blowing possible; but is that really true?

As the Plame case demonstrates, until sources are identified, it's virtually impossible to prosecute wrongdoers for any crime supposedly exposed. Even witnesses whose lives are endangered are afforded new identities after they testify. Juries must be able to assess a whistle-blower's credibility. The defendant has a constitutional right to confront his accuser. The public is legally entitled to observe the proceedings and draw its own conclusions. When crimes are tried in our 24/7 press, these three foundational principles are violated every time a reporter cites an anonymous source.

Reporters themselves are often the primary beneficiaries of the privileges we accord them. As often as not, the use of anonymous sources serves no public purpose. To the contrary, it serves the reporter's proprietary interest in the story he is promoting, and it obstructs both investigation and analysis by others -- Special Prosecutors among them. It is both ironic and revealing that some of the loudest complaints about the privileges enjoyed by Judy Miller, Bob Woodward and their protected sources appear to have issued from staff at the New York Times and the Washington Post.

Maguire describes the unfortunate results when second hand reportage is attempted. Murray Waas obscures his sources. Neil Lewis piles on. It's our childhood telephone game now freighted with higher stakes. What then are we to make of the fact that Patrick Fitzgerald’s filings, and Circuit Judge Tatel’s February opinion lean on news and articles in the press? Upon what proffer of reliability or materiality do such vague citations rest? Of greater moment still, where has this strange circularity of prosecution and press left Scooter Libby, the singular defendant facing trial after a long, high profile, investigation of postulated, high profile, leaks?

In that grand Chicago tradition which saw Mobster Al Capone brought to heel for tax evasion, Patrick Fitzgerald held a press conference to assure us that with Libby's indictment for perjury and obstruction, Justice has been served. Capone's misdeeds, of course, predated investigation. Nevertheless, both Fitzgerald and Tatel -- and, it must be noted, a host of partisan observers -- have asserted that Libby's trial for perjury is, in reality, a substitute for prosecution of the more specific underlying crime. Here is Judge Tatel's strange logic on that score:

Insofar as false testimony may have impaired the special counsel’s identification of culprits, perjury in this context is itself a crime with national security implications. What’s more, because the charges contemplated here relate to false denials of responsibility for Plame’s exposure, prosecuting perjury or false statements would be tantamount to punishing the leak.

A perjury trial in these circumstances has one distinct advantage, however, accruing solely to the prosecution: Libby forfeits the right to confront his real accusers.

Indeed, in the larger arena, who are his accusers? Joe Wilson? David Corn? Valerie Plame, herself? The C.I.A.? Their referral simply asks the Justice Department to determine whether a violation has occurred, though they themselves originally confirmed Ms. Plame's employment -- to a reporter! Is there any available witness to an originating crime who is not compromised in some substantive way? Neither Libby, nor we, will be afforded the opportunity to find out, because, as Fitzgerald argues in resisting Libby's discovery motion, none of the above is relevant to the case at hand.

On the other hand, it's good enough for the opening ten pages of the Libby indictment, if not his defense. Fitzgerald is generous with such irrelevant details as he walks us up to the crimes he will actually charge Libby with committing. He tells us how dangerous the outing of secret agents can be. He traces Joe Wilson's mission, Valerie Plame's status, the President's “16 words,” charts the progress of the Wilson saga in Administration circles and the press. Yet as we speak, he contends that none of the evidence upon which he based the factual underpinnings of his indictment is material to Libby's defense. In a masterly bit of legal legerdemain, we suddenly have but a straightforward perjury and obstruction case after all.

Without minimizing or excusing Libby's alleged falsities in any way, his trial on such charges alone represents a profound miscarriage of justice. If Libby obstructed justice, let him pay the price; but if we accept -- as predicated in one of the key rulings here and in prosecutorial statements -- that his conviction is "tantamount to punishing the leak" of highly classified information with "national security implications," then justice must accept a commensurate obligation. Let a jury assess the credibility of the evidence that such a crime, in fact, occurred, let the defendant confront his accusers, let the public bear witness and draw its own conclusions, as it is entitled to do.

If nothing else, the Plame game suggests that the reporter’s privilege is a truly double-edged sword, one that is not uniformly wielded in the public interest. The drive to cement the protection of anonymous accusers in law deserves to be approached with considerably more caution than it has been to date.

Quasiblog

February 10, 2006

Who Ya Gonna Call!

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