Commentary Magazine


Topic: Judith Miller

Another Day, Another Security Leak

The New York Times reported Monday that General David Petraeus issued a secret directive in September, expanding covert military operations in the Middle East. The author, Mark Mazzetti, states that the Times’ staff has viewed a copy of the document. Preparation for the article included speaking to government officials who discussed its contents only on condition of anonymity, because it’s classified.

Fortunately, our information security usually works better than this. Leaks of national-security secrets are the exception and not the rule. But once again, someone on the government payroll, with a clearance, and with knowledge of classified current operations, has broken the law by disclosing what he knows to unauthorized recipients in the press.

It’s unlikely that we will be told someday that the leaker of the Petraeus directive took action because of sleepless nights and professional agony, as Newsweek reported in 2008 of one warrantless-wiretapping leaker who called the New York Times in 2004. In the case of the Petraeus directive, there is no apparent reason for a leaker to be motivated by concern about government overreach or civil rights. Perhaps the motive is disagreement with the policy.

But these leakers aren’t romantic heroes; they are people breaking their government’s security oaths. Thomas Tamm, the known wiretapping leaker, has been investigated (and lionized by the left) but never prosecuted. Yet it’s clear he broke his security oath by going to the media. It’s also clear from the Newsweek story that he came nowhere near exhausting his lawful options for registering concern about the wiretapping program. He apparently talked to a former colleague on the Senate Judiciary Committee — but not to his full chain of command at the Justice Department, to the Justice Department Inspector General, or to the intelligence oversight committee of either house of Congress.

James Risen, the Times reporter who broke the wiretapping story, was subpoenaed by Eric Holder last month to disclose the government sources for another of his classified revelations: this one involving information about U.S. efforts against Iran in his 2006 book State of War. Risen has refused to comply. His fate is uncertain; presumably, he might be jailed for contempt of court as Judith Miller was in the Valerie Plame Wilson case.

Miller ultimately agreed to testify after obtaining immunity. While the Plame Wilson case is not the best example of the real problems created by national-security leaks, the outcome with Miller was the right one for more genuinely damaging cases. The “journalist shield” exception should not protect government leakers who are committing felonies by the very act of disclosing classified information to the press.  Journalists should have to tell the authorities who they are.

The New York Times reported Monday that General David Petraeus issued a secret directive in September, expanding covert military operations in the Middle East. The author, Mark Mazzetti, states that the Times’ staff has viewed a copy of the document. Preparation for the article included speaking to government officials who discussed its contents only on condition of anonymity, because it’s classified.

Fortunately, our information security usually works better than this. Leaks of national-security secrets are the exception and not the rule. But once again, someone on the government payroll, with a clearance, and with knowledge of classified current operations, has broken the law by disclosing what he knows to unauthorized recipients in the press.

It’s unlikely that we will be told someday that the leaker of the Petraeus directive took action because of sleepless nights and professional agony, as Newsweek reported in 2008 of one warrantless-wiretapping leaker who called the New York Times in 2004. In the case of the Petraeus directive, there is no apparent reason for a leaker to be motivated by concern about government overreach or civil rights. Perhaps the motive is disagreement with the policy.

But these leakers aren’t romantic heroes; they are people breaking their government’s security oaths. Thomas Tamm, the known wiretapping leaker, has been investigated (and lionized by the left) but never prosecuted. Yet it’s clear he broke his security oath by going to the media. It’s also clear from the Newsweek story that he came nowhere near exhausting his lawful options for registering concern about the wiretapping program. He apparently talked to a former colleague on the Senate Judiciary Committee — but not to his full chain of command at the Justice Department, to the Justice Department Inspector General, or to the intelligence oversight committee of either house of Congress.

James Risen, the Times reporter who broke the wiretapping story, was subpoenaed by Eric Holder last month to disclose the government sources for another of his classified revelations: this one involving information about U.S. efforts against Iran in his 2006 book State of War. Risen has refused to comply. His fate is uncertain; presumably, he might be jailed for contempt of court as Judith Miller was in the Valerie Plame Wilson case.

Miller ultimately agreed to testify after obtaining immunity. While the Plame Wilson case is not the best example of the real problems created by national-security leaks, the outcome with Miller was the right one for more genuinely damaging cases. The “journalist shield” exception should not protect government leakers who are committing felonies by the very act of disclosing classified information to the press.  Journalists should have to tell the authorities who they are.

Read Less

Did I Write That?

Judith Miller and David Samuels write in the Los Angeles Times:

While no one explicitly suggested that Hasan’s alleged response was commensurate with the insults he suffered, the subtext of the coverage was that he was simply another traumatized victim of America’s wars — and that his alleged actions should prompt us to offer a collective mea culpa.

That’s absolutely ridiculous. But in taking aim at the evasive psycho-babble that dominated early news accounts, the right has engaged in an equally dangerous bias that conflates Hasan’s radicalism with the religious beliefs of mainstream Muslims. In their narrative, any Muslim might suddenly “snap,” as Hasan apparently did, and reveal himself to be the enemy within.

Attacking what she called “head-scratching and obfuscation,” Jennifer Rubin argued on Commentary’s website that the fear of appearing “anti-Muslim” had led the Army and the American media to ignore “the role of Maj. Hasan’s Muslim beliefs” in the Ft. Hood massacre.

Even the sophisticated analyst Tunku Varadarajan of Forbes.com observed that “Muslims may be more extreme because their religion is founded on bellicose conquest, a contempt for infidels and an obligation for piety that is more extensive than in other schemes.” He also coined the phrase “going Muslim” — a play on “going postal” that even he found disconcerting — to describe the orgy of violence in which Hasan allegedly engaged. Adding sensibly that not all Muslims might be so inclined, Rubin and Varadarajan left it to more primitive commentators to draw the inevitable conclusion that all Muslims in the U.S. military should be viewed as potential traitors.

I contacted Ms. Miller to point out that the column distorts — badly so — what I have written. Am I really among those who contend that “any Muslim might suddenly ‘snap,’ as Hasan apparently did, and reveal himself to be the enemy within”? Why no. In fact, as I pointed out to the authors of that line that my posts say the very opposite. In fact, I wrote here:

To be clear: it is the ultimate red herring, a straw man of gargantuan proportions, to suggest that those pointing to Hasan’s motives and announced intentions (“I am going to do good work for God“) are suggesting that Muslim soldiers as a group are untrustworthy or suspect. No, there is no “backlash” in the works. What there is, and what elite opinion makers should recognize before the public’s fury builds, is that ignoring signs of  Islamic-fundamentalist-inspired animus toward America will get people killed. It has. And it will again unless and until we stop tip-toeing around the obvious link between a murderous ideology and murder.

And here I wrote:

It is the diversity obsession and the give-no-offense mentality that, we fear, allowed Hasan to avoid a stringent inquiry. I suppose Robinson can satisfy himself and those like-minded, squeamish souls who can’t bear to think they’re trampling on the sensibilities of anyone. But let’s be clear: the Army didn’t fail the “Muslim community”; it failed 43 wounded or slain people and their families. And to prevent it from happening again, we need to get over the diversity fetish (which imagines that Americans are too dumb to distinguish between nonviolent Muslims and those who’ve adopted a murderous ideology) and get on with the business of fighting a war against those who want many, many more Fort Hoods.

In short, I did not “leave it to more primitive commentators to draw the inevitable conclusion that all Muslims in the U.S. military should be viewed as potential traitors.” I have written to dispute that conclusion and have criticized those who would deploy the red-herring argument.

The irony is not lost on me: if you are going to criticize others for employing imprecise or inflammatory analysis, it is best to be accurate yourself. The authors were unmoved by actual citations from my work — why let what I’ve actually written get in the way of a good LA Times column? — and appear disinclined to correct or amend their distortions. So be it.

Judith Miller and David Samuels write in the Los Angeles Times:

While no one explicitly suggested that Hasan’s alleged response was commensurate with the insults he suffered, the subtext of the coverage was that he was simply another traumatized victim of America’s wars — and that his alleged actions should prompt us to offer a collective mea culpa.

That’s absolutely ridiculous. But in taking aim at the evasive psycho-babble that dominated early news accounts, the right has engaged in an equally dangerous bias that conflates Hasan’s radicalism with the religious beliefs of mainstream Muslims. In their narrative, any Muslim might suddenly “snap,” as Hasan apparently did, and reveal himself to be the enemy within.

Attacking what she called “head-scratching and obfuscation,” Jennifer Rubin argued on Commentary’s website that the fear of appearing “anti-Muslim” had led the Army and the American media to ignore “the role of Maj. Hasan’s Muslim beliefs” in the Ft. Hood massacre.

Even the sophisticated analyst Tunku Varadarajan of Forbes.com observed that “Muslims may be more extreme because their religion is founded on bellicose conquest, a contempt for infidels and an obligation for piety that is more extensive than in other schemes.” He also coined the phrase “going Muslim” — a play on “going postal” that even he found disconcerting — to describe the orgy of violence in which Hasan allegedly engaged. Adding sensibly that not all Muslims might be so inclined, Rubin and Varadarajan left it to more primitive commentators to draw the inevitable conclusion that all Muslims in the U.S. military should be viewed as potential traitors.

I contacted Ms. Miller to point out that the column distorts — badly so — what I have written. Am I really among those who contend that “any Muslim might suddenly ‘snap,’ as Hasan apparently did, and reveal himself to be the enemy within”? Why no. In fact, as I pointed out to the authors of that line that my posts say the very opposite. In fact, I wrote here:

To be clear: it is the ultimate red herring, a straw man of gargantuan proportions, to suggest that those pointing to Hasan’s motives and announced intentions (“I am going to do good work for God“) are suggesting that Muslim soldiers as a group are untrustworthy or suspect. No, there is no “backlash” in the works. What there is, and what elite opinion makers should recognize before the public’s fury builds, is that ignoring signs of  Islamic-fundamentalist-inspired animus toward America will get people killed. It has. And it will again unless and until we stop tip-toeing around the obvious link between a murderous ideology and murder.

And here I wrote:

It is the diversity obsession and the give-no-offense mentality that, we fear, allowed Hasan to avoid a stringent inquiry. I suppose Robinson can satisfy himself and those like-minded, squeamish souls who can’t bear to think they’re trampling on the sensibilities of anyone. But let’s be clear: the Army didn’t fail the “Muslim community”; it failed 43 wounded or slain people and their families. And to prevent it from happening again, we need to get over the diversity fetish (which imagines that Americans are too dumb to distinguish between nonviolent Muslims and those who’ve adopted a murderous ideology) and get on with the business of fighting a war against those who want many, many more Fort Hoods.

In short, I did not “leave it to more primitive commentators to draw the inevitable conclusion that all Muslims in the U.S. military should be viewed as potential traitors.” I have written to dispute that conclusion and have criticized those who would deploy the red-herring argument.

The irony is not lost on me: if you are going to criticize others for employing imprecise or inflammatory analysis, it is best to be accurate yourself. The authors were unmoved by actual citations from my work — why let what I’ve actually written get in the way of a good LA Times column? — and appear disinclined to correct or amend their distortions. So be it.

Read Less

The Free Flow of Classified Information Act

Given his particular set of credentials in national security, it is not a surprise that John McCain understands the critical need for secrecy in the conduct of foreign and military policy.  He has, for example, sharply criticized the New York Times for its December 2005 decision to reveal the National Security Agency’s Terrorist Surveillance Program, the highly classified effort to intercept the international telephone and email communications of al-Qaeda terrorists.  “I understand completely why the government charged with defending our security would want to discourage that from happening and hold the people who disclosed that damaging information accountable for their action,” McCain told an audience in Arlington, Virginia, on April 13.But exactly how is the government to uncover who the disclosers are? One way would be for it to issue a subpoena to the journalists who broke the story and ask them before a grand jury, under pain of a contempt citation, to disgorge the names of their confidential sources. That is precisely what the special prosecutor Patrick Fitzgerald did in issuing a subpoena to Judith Miller of the New York Times as he investigated the leak of the identity of the ostensibly undercover CIA operative Valerie Plame. Miller spent 85 days in jail refusing to comply with the subpoena before she changed her mind and identified Scooter Libby as her source.

A bill now before Congress would exempt journalists from having to testify in such cases. The bill is called the Free Flow of Information Act, but a better name might be the Free Flow of Classified Information Act. By making it almost impossible to apprehend leakers in government, the flow of highly secret information, already substantial, is likely to grow into a flood.  Hillary Clinton and Barack Obama are both supporting this legislation. So, also, is — of all people — John McCain. In addition to criticizing it sharply–he has called it “a license to do harm, perhaps serious harm,” he has also performed a pirouette to praise it as “a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction.”

McCain’s effort to have it both ways is either evidence of serious intellectual confusion or shabby political calculation. For its part, the New York Times is insisting that without the law, the flow of news will slow and the public’s “right to know” will be seriously impaired.

I have sought to explain some of the problems with this contention in several articles: Why Journalists Are Not Above the LawA License to Leak and Not Every Leak is Fit To Print. Whatever one makes of my conclusions, the assertion by the Times that the news will dry up without a shield law is a ridiculous position for a newspaper that is currently in the process of slashing its staff by a hundred editors and reporters. Unless its newsroom is currently populated by a forest of deadwood, those cuts will limit its ability to report the news far more than the purely hypothetical loss of stories caused by the absence of a shield law.

Given his particular set of credentials in national security, it is not a surprise that John McCain understands the critical need for secrecy in the conduct of foreign and military policy.  He has, for example, sharply criticized the New York Times for its December 2005 decision to reveal the National Security Agency’s Terrorist Surveillance Program, the highly classified effort to intercept the international telephone and email communications of al-Qaeda terrorists.  “I understand completely why the government charged with defending our security would want to discourage that from happening and hold the people who disclosed that damaging information accountable for their action,” McCain told an audience in Arlington, Virginia, on April 13.But exactly how is the government to uncover who the disclosers are? One way would be for it to issue a subpoena to the journalists who broke the story and ask them before a grand jury, under pain of a contempt citation, to disgorge the names of their confidential sources. That is precisely what the special prosecutor Patrick Fitzgerald did in issuing a subpoena to Judith Miller of the New York Times as he investigated the leak of the identity of the ostensibly undercover CIA operative Valerie Plame. Miller spent 85 days in jail refusing to comply with the subpoena before she changed her mind and identified Scooter Libby as her source.

A bill now before Congress would exempt journalists from having to testify in such cases. The bill is called the Free Flow of Information Act, but a better name might be the Free Flow of Classified Information Act. By making it almost impossible to apprehend leakers in government, the flow of highly secret information, already substantial, is likely to grow into a flood.  Hillary Clinton and Barack Obama are both supporting this legislation. So, also, is — of all people — John McCain. In addition to criticizing it sharply–he has called it “a license to do harm, perhaps serious harm,” he has also performed a pirouette to praise it as “a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction.”

McCain’s effort to have it both ways is either evidence of serious intellectual confusion or shabby political calculation. For its part, the New York Times is insisting that without the law, the flow of news will slow and the public’s “right to know” will be seriously impaired.

I have sought to explain some of the problems with this contention in several articles: Why Journalists Are Not Above the LawA License to Leak and Not Every Leak is Fit To Print. Whatever one makes of my conclusions, the assertion by the Times that the news will dry up without a shield law is a ridiculous position for a newspaper that is currently in the process of slashing its staff by a hundred editors and reporters. Unless its newsroom is currently populated by a forest of deadwood, those cuts will limit its ability to report the news far more than the purely hypothetical loss of stories caused by the absence of a shield law.

Read Less

The Media vs. the American People

Are reporters above the law? Should they be?

We have lately been running laps around this block in connection with the 2005 leak of the NSA terrorist surveillance program and the 2003 exposure of Valerie Plame’s CIA status. The first of these two episodes did not land any reporters into trouble, but a federal grand jury is still hearing evidence in the case and there was movement in it last month. The second led to Judith Miller of the New York Times being put in the slammer by a court. There she remained for 85 days, until she disgorged the identity of her confidential source: Scooter Libby.

Another issue is now compelling us to running around the block yet again: the anthrax attacks of 2001 that killed five people. Steven J. Hatfill, the bioterrorism expert who was named in the media as a suspect, has brought a civil suit against the government for violating his rights under the Privacy Act. In order to demonstrate how the government trampled on his privacy, Hatfill wants to obtain the notes of journalists who received disparaging information about him from confidential sources in the FBI and Justice Department.

Read More

Are reporters above the law? Should they be?

We have lately been running laps around this block in connection with the 2005 leak of the NSA terrorist surveillance program and the 2003 exposure of Valerie Plame’s CIA status. The first of these two episodes did not land any reporters into trouble, but a federal grand jury is still hearing evidence in the case and there was movement in it last month. The second led to Judith Miller of the New York Times being put in the slammer by a court. There she remained for 85 days, until she disgorged the identity of her confidential source: Scooter Libby.

Another issue is now compelling us to running around the block yet again: the anthrax attacks of 2001 that killed five people. Steven J. Hatfill, the bioterrorism expert who was named in the media as a suspect, has brought a civil suit against the government for violating his rights under the Privacy Act. In order to demonstrate how the government trampled on his privacy, Hatfill wants to obtain the notes of journalists who received disparaging information about him from confidential sources in the FBI and Justice Department.

U.S. District Judge Reggie B. Walton, the same judge who presided over the trial of Libby, is hearing the matter. Yesterday, he dealt a blow to the five reporters whose notes are being sought. “The names of the sources are central to Dr. Hatfill’s case,” he wrote in a 31-page opinion.

Is this good news or bad? Attorneys and lobbyists for the news media argue that forcing a breach of confidentiality in this way will impair the ability of reporters to gather the news. Government officials are unlikely to tell reporters what they know, goes the argument, if their identities might one day be disclosed.

True enough, but the law is the law. Journalists cannot merely declare themselves above it, whether they are disclosing U.S. counterterrorism programs or besmirching the reputation of an innocent individual. (Hatfill was never charged with any crime but in 2002 was named by Attorney General John Ashcroft as a “person of interest” to the investigation.) The press, of course, does enjoy First Amendment protection, but this is hardly unlimited and does not constitute a license to do or say as one pleases regardless of the consequences, as so many journalists seem to believe.

If members of press think we are ill-served by the laws as they stand, they can lobby to change them. A bill to do just that and establish a “shield” for journalists is currently before the U.S. House of Representatives. But successive congresses have considered such a bill only to reject it. I have argued, on a number of grounds, that such a bill is a bad idea whose time has not arrived. Thus far the American people, acting through their elected representatives, would seem to concur. Until such a law is passed, journalists are obliged to follow the rules as they stand or, as Judith Miller chose to do, defy the courts, which means defying the duly passed laws of the United States and taking the consequences.

Read Less

Is Dana Priest a Common Criminal?

Dana Priest is a national-security correspondent for the Washington Post. Her professional success depends in large part on her ability to ferret out secrets from the U.S. intelligence and defense bureaucracy and from knowledgeable officials on Capitol Hill.

Sources within government, acting in violation of the laws governing secrecy, regularly provide her with classified information in exchange for her promise not to disclose their identity, even if this means she must defy a court order and possibly go to jail. Last year, Priest won a major journalism award for a November 2005 article bringing to light the highly classified fact that the CIA had established detention facilities for terrorists in foreign countries.

Because reporters have lately been going to jail with some frequency—the imprisonment of Judith Miller in the Valerie Plame leak investigation is the most famous recent instance, but there have been others—pressure has been building for federal “shield-law” legislation that would exempt reporters from being compelled by courts to disclose their sources.

Read More

Dana Priest is a national-security correspondent for the Washington Post. Her professional success depends in large part on her ability to ferret out secrets from the U.S. intelligence and defense bureaucracy and from knowledgeable officials on Capitol Hill.

Sources within government, acting in violation of the laws governing secrecy, regularly provide her with classified information in exchange for her promise not to disclose their identity, even if this means she must defy a court order and possibly go to jail. Last year, Priest won a major journalism award for a November 2005 article bringing to light the highly classified fact that the CIA had established detention facilities for terrorists in foreign countries.

Because reporters have lately been going to jail with some frequency—the imprisonment of Judith Miller in the Valerie Plame leak investigation is the most famous recent instance, but there have been others—pressure has been building for federal “shield-law” legislation that would exempt reporters from being compelled by courts to disclose their sources.

The idea is that because journalists like Priest now lack such protection, sources hesitate to talk and the public is deprived of valuable news. With a Democratic majority now running the show in Congress, and a number of leading Republicans supporting such a bill, the prospects for the passage of a “reporter’s privilege” are better now than they have been at any time in recent memory.

Earlier this year, I put forward my own analysis of the reporter’s privilege in an article entitled Why Journalists Are Not Above the Law. In June 2006, I also testified about this and related issues before the Senate Judiciary Committee. Also testifying at the same hearing was Matthew W. Friedrich, the Principal Deputy Attorney General. The assembled Senators gave him a number of written questions about his department’s view of the shield-law bill then before Congress.

The Justice Department’s reply to these questions took a long time coming. Only now, a year later, has it been released to the public by the Senate Judiciary Committee. Among its many points, it takes a dramatic position regarding what is now routinely accepted journalistic behavior.

At issue is a loophole in the proposed bill. In cases in which journalists are themselves eyewitnesses to a crime, the shield would not apply. Thus, if Dana Priest found herself in a bank that was being robbed, she, like all other witnesses, would have an obligation to testify before a grand jury about what she heard and saw. She could not, under the proposed shield law, claim exemption, even if she subsequently wrote a news article about the holdup.

But this eyewitness exception itself has an exception in the proposed legislation. If the crime in question involved the unauthorized disclosure of classified government information to a journalist, than the eyewitness exception would not apply, and the journalist’s shield would remain in force.

To this, the Justice Department objects out such a provision “would permit [a] journalist to participate intentionally in violation of the criminal laws of the United States—indeed, as the recipient of the disclosure, to cause the crime to occur—with impunity.” This would put the journalist-source privilege on a completely different plane from other, long-recognized privileges, like the attorney-client privilege, which “does not apply where the attorney participates in crime.”

Surprisingly the position taken by the Justice Department has gone unnoticed by the media—which are not yet up in arms over it. True, the Justice Department has never once brought charges against a journalist for eliciting secrets from government officials (although, as in the ongoing AIPAC case, it has brought them against lobbyists for such conduct). In deference to the First Amendment guarantee of freedom of the press, the department’s strong and longstanding preference, codified in its own voluntarily adopted internal rules, has been to prosecute leakers rather than journalists.

But in this passage the Justice Department has taken a further step. It is stating unequivocally that when journalists like Dana Priest ferret out national-security secrets, even if they do not publish them, they are actively participating in a crime.

Read Less

Will the New York Times Finally Be Indicted?

Is it possible that the New York Times could still be indicted for revealing the existence of the NSA’s Terrorist Surveillance Program in a December 2005 front-page story?

Shortly after the revelation appeared, a federal grand jury was empaneled to investigate the leak. A range of government officials, including Jane Harmon, then the ranking Democrat of the House Intelligence Committee, pointed to the severe damage that the Times story did to our efforts to intercept al-Qaeda communications and thwart a second September 11. Shortly thereafter, President Bush called the newspaper’s conduct “shameful.”

I agreed with these assessments. In fact, I argued in March 2006 that the New York Times had also broken the black-letter law. It had breached the provisions of Section 798 of Title 18, which make it a crime to publish classified information concerning the interception of communications intelligence. Shortly thereafter, Attorney General Alberto Gonzalez hinted that, in light of several statutes on the books, the New York Times’s conduct was under review by his department.

Read More

Is it possible that the New York Times could still be indicted for revealing the existence of the NSA’s Terrorist Surveillance Program in a December 2005 front-page story?

Shortly after the revelation appeared, a federal grand jury was empaneled to investigate the leak. A range of government officials, including Jane Harmon, then the ranking Democrat of the House Intelligence Committee, pointed to the severe damage that the Times story did to our efforts to intercept al-Qaeda communications and thwart a second September 11. Shortly thereafter, President Bush called the newspaper’s conduct “shameful.”

I agreed with these assessments. In fact, I argued in March 2006 that the New York Times had also broken the black-letter law. It had breached the provisions of Section 798 of Title 18, which make it a crime to publish classified information concerning the interception of communications intelligence. Shortly thereafter, Attorney General Alberto Gonzalez hinted that, in light of several statutes on the books, the New York Times’s conduct was under review by his department.

How did the Bush administration follow up? Faced with the politically explosive challenge of indicting our country’s leading newspaper, it did nothing at all. It was rewarded for its forbearance by another New York Times sensation, a front-page story in May 2006 revealing the details of a second highly classified counterterrorism program that worked through the European banking consortium SWIFT.

When the European central bank closed the program some months later, the New York Times ran a short item taking note, which it buried on the bottom of an inside page.

Now, over this past weekend, nearly two years after the initial NSA leak, Congress finally acted to codify the intelligence program that the New York Times compromised. But as coincidence would have it, the federal grand jury hearing evidence in the leak investigation is still active, and at the very same moment that Congress was tidying up the law, there was dramatic action.

Newsweek’s Michael Isikoff broke the story on Sunday, reporting that

a team of FBI agents, armed with a classified search warrant, raided the suburban Washington home of a former Justice Department lawyer. The lawyer, Thomas M. Tamm, previously worked in Justice’s Office of Intelligence Policy and Review (OIPR)—the supersecret unit that oversees surveillance of terrorist and espionage targets. The agents seized Tamm’s desktop computer, two of his children’s laptops, and a cache of personal files. Tamm and his lawyer, Paul Kemp, declined any comment. So did the FBI. But two legal sources who asked not to be identified talking about an ongoing case told Newsweek the raid was related to a Justice criminal probe into who leaked details of the warrantless eavesdropping program to the news media.

With the investigation making progress, the possibility remains that even if the New York Times is not indicted, its reporters—James Risen and Eric Lichtblau—might be called before the grand jury and asked to confirm under oath that Tamm, or some other suspect, was their source. That is what happened to a whole battalion of journalists in the investigation of Scooter Libby in the Valerie Plame fiasco.

If Risen and Lichtblau promised their source confidentiality, they might choose not to testify. That would potentially place them, like Judith Miller in the Libby investigation, in contempt of court and even land them in prison.

Back when the NSA leak first occurred, I rated the probability of an indictment of the Times at somewhere between 0 and 1 percent. Today, with the Bush administration in disarray, and Alberto Gonzalez powerless, the probabilities have plummeted to .000001 percent. But a contempt citation is another kettle of fish. With the Judith Miller precedent both fresh and firmly fixed in law, the NSA-leak case might suddenly become very interesting.

Read Less

Ball Three

What is the Scooter Libby trial really about?

In announcing the indictment of the vice-presidential aide in October 2005, the special prosecutor Patrick Fitzgerald attempted to make it all perfectly clear, using a baseball analogy:

If you saw a baseball game and you saw a pitcher wind up and throw a fast ball and hit a batter right smack in the head and it really, really hurt them, you’d want to know why the pitcher did that. And you’d wonder whether or not the person just reared back and decided, “I’ve got bad blood with this batter, he hit two home runs off me, I’m just going to hit him in the head as hard as I can.”

You also might wonder whether or not the pitcher just let go of the ball, or his foot slipped, and he had no idea to throw the ball anywhere near the batter’s head. And there’s a lots of shades of gray in between. You might learn that you wanted to hit the batter in the back, it hit him in the head because he moved; you might want to throw it under his chin but ended up hitting on the head.

And what you’d want to do is have as much information as you could. You’d want to know what happened in the dugout. Was this guy complaining about the person he threw at? Did he talk to anyone else? What was he thinking? How does he react? All those things you’d want to know. And then you’d make a decision as to whether this person should be banned from baseball, whether he should be suspended, whether you should do nothing at all and just say, “Hey, the person threw a bad pitch; get over it.”

After nearly a week of testimony the case is not much clearer than this botched analogy, the forensic equivalent of a “wardrobe malfunction.”

The Washington Post described Judith Miller’s testimony yesterday as “potentially damaging” to Libby. And this is surely accurate if one focuses on the word “potentially.” But her testimony was also even more potentially helpful to the defense.

Libby’s lawyers are expected to maintain that his “false” statements to the FBI and to a grand jury were the product of a faulty memory. So far, a number of prosecution witnesses have given testimony that differs significantly from what Libby told FBI investigators and the grand jury. But more importantly they have been shown to have strikingly deficient memories themselves.

Judith Miller had 85 days in the Alexandria jail in which to refresh her recollections about the sequence of events that brought her there. But no sooner was she released and brought before the grand jury, than she was compelled to acknowledge that she had entirely forgotten a critical meeting with Libby in June of 2003. If she could forget such a vital detail, will the jury convict Libby for lying, when the possibility that he simply forgot has been powerfully sketched by Miller and others in the witness parade?

It is possible that Scooter Libby is lying through his catcher’s mask. But my bet is that, if the jury takes seriously the meaning of the words “reasonable doubt,” Patrick Fitzgerald will have been judged to have pitched four balls, and Scooter, now up at bat, will get to walk.

To see key exhibits in the Scooter Libby case, click here.

To see key exhibits in the Baseball Hall of Fame, click here.

What is the Scooter Libby trial really about?

In announcing the indictment of the vice-presidential aide in October 2005, the special prosecutor Patrick Fitzgerald attempted to make it all perfectly clear, using a baseball analogy:

If you saw a baseball game and you saw a pitcher wind up and throw a fast ball and hit a batter right smack in the head and it really, really hurt them, you’d want to know why the pitcher did that. And you’d wonder whether or not the person just reared back and decided, “I’ve got bad blood with this batter, he hit two home runs off me, I’m just going to hit him in the head as hard as I can.”

You also might wonder whether or not the pitcher just let go of the ball, or his foot slipped, and he had no idea to throw the ball anywhere near the batter’s head. And there’s a lots of shades of gray in between. You might learn that you wanted to hit the batter in the back, it hit him in the head because he moved; you might want to throw it under his chin but ended up hitting on the head.

And what you’d want to do is have as much information as you could. You’d want to know what happened in the dugout. Was this guy complaining about the person he threw at? Did he talk to anyone else? What was he thinking? How does he react? All those things you’d want to know. And then you’d make a decision as to whether this person should be banned from baseball, whether he should be suspended, whether you should do nothing at all and just say, “Hey, the person threw a bad pitch; get over it.”

After nearly a week of testimony the case is not much clearer than this botched analogy, the forensic equivalent of a “wardrobe malfunction.”

The Washington Post described Judith Miller’s testimony yesterday as “potentially damaging” to Libby. And this is surely accurate if one focuses on the word “potentially.” But her testimony was also even more potentially helpful to the defense.

Libby’s lawyers are expected to maintain that his “false” statements to the FBI and to a grand jury were the product of a faulty memory. So far, a number of prosecution witnesses have given testimony that differs significantly from what Libby told FBI investigators and the grand jury. But more importantly they have been shown to have strikingly deficient memories themselves.

Judith Miller had 85 days in the Alexandria jail in which to refresh her recollections about the sequence of events that brought her there. But no sooner was she released and brought before the grand jury, than she was compelled to acknowledge that she had entirely forgotten a critical meeting with Libby in June of 2003. If she could forget such a vital detail, will the jury convict Libby for lying, when the possibility that he simply forgot has been powerfully sketched by Miller and others in the witness parade?

It is possible that Scooter Libby is lying through his catcher’s mask. But my bet is that, if the jury takes seriously the meaning of the words “reasonable doubt,” Patrick Fitzgerald will have been judged to have pitched four balls, and Scooter, now up at bat, will get to walk.

To see key exhibits in the Scooter Libby case, click here.

To see key exhibits in the Baseball Hall of Fame, click here.

Read Less

Bill Keller, Secret Agent

In 1978, back when I was working for him on Capitol Hill, Senator Pat Moynihan propounded what he called “the Iron Law of Emulation.” The basic idea was that organizations in conflict with one another come to resemble one another. Because he was drawing on the work of the 19th German sociologist Georg Simmel, some on his staff used to call it, somewhat mockingly, the Iron Law of Simmelation.

But Moynihan’s point was a good one. And today, with former New York Times reporter Judith Miller on the witness stand in the trial of Scooter Libby, we can see the iron law at work in the fiercely adversarial relationship between the Times and the U.S. intelligence community.

The editors and reporters of the New York Times believe they are covering the CIA–and in fact they are–but they are also in competition with the spy agency and the resemblances between the two institutions are striking.

Both, to begin with, have a remarkably similar mission. The CIA is charged with trying to inform its clients (the White House and the rest of the executive branch) about the world around it: what is going on where, what are the looming dangers, what are the facts, and how do reliably do we know them? Much of what the New York Times does is precisely the same, except its client is not the government but the newspaper-buying American public.

Because they are caught up in certain characteristic American dysfunctions, both institutions carry out their functions with mixed results.

The CIA and the Times, for one thing, are both charter members of the cult of “diversity.” In 1995, the spy agency created an internal body called the Resources Oversight Council aimed “at improving the agency’s efforts to hire and provide career development for women, minorities, the deaf, and people with disabilities,” leading the CIA to hire more Hispanics at the very moment when it really needed more Arabic speakers.

The Times has been doing something quite similar, and damage has demonstrably been done. In 2006 the paper announced with much fanfare that an internal body known as “the diversity council” had concluded that “diversity is essential to our business future and our journalism.” But the emphasis on diversity had been in place for decades, and it was to figure in one of the worst debacles (see below) the newspaper ever endured.

Like any large elite organization the CIA and the Times must contend with mediocrity creeping in and gumming up the works. Thus, the CIA has kept incompetents in its ranks, including “anonymous”–a.k.a. Michael Scheuer, its top expert on Osama bin Laden, who despite his insistence on always “checking the checkables,” has enormous difficulty spelling proper names and who characterized bin Laden as “the most respected, loved, romantic, charismatic, and perhaps able figure in the last 150 years of Islamic history.” And “gentle,” too.

The Times, for its part, keeps an impressive daily log of its errors, spelling and otherwise, which despite an army of editors, it cannot seem to contain. For more serious instances of bias and misinterpretation, one need only recall the reporting by Walter Duranty of Stalin’s show trials and artificial famine in the 1930’s, the placement of the Holocaust on the back pages during the 1940’s, its depiction of the North Vietnamese defeat in the Tet offensive as a major victory, or turn to watchdog outfits like CAMERA for an array of contemporary documentation.

Both institutions, over the years, have had worse than bad apples in their ranks. The CIA has suffered outright turncoats like Soviet mole Aldrich Ames, who despite internal evaluations of egregious misbehavior was steadily promoted upward until he was in a position to give away the CIA’s most precious assets.

The New York Times has had its outright traitors, too, like the diversity-hire Jayson Blair, whose fictional reporting the paper was to call “a profound betrayal of trust.” During his five-year career progressing from intern to national reporter, the management of the Times received numerous warnings that the rising star was actually a comet waiting to crash. Despite such cautions, Blair steadily advanced, like Aldrich Ames, eventually reducing the Times to what it itself called “a low point in the 152-year history of the newspaper.”

But in both institutions, it is not deliberate bad faith that typically creates malfunction but something else. The CIA notoriously failed to foresee the attacks of September 11 and then issued an erroneous “slam-dunk” assessment that Iraq possessed weapons of mass destruction. The problem was simply that agency analysts placed too much stock in Iraqi émigré sources who were telling them what they wanted to hear. The New York Times’s credulous treatment of Saddam Hussein’s WMD arsenal fell into the same trap.

Judith Miller was front and center. In reporting on Saddam’s burgeoning (but non-existent) WMD program, she too placed too much faith in sources who were telling her what she wanted to hear. Strikingly, in both cases, the chain of command in the CIA and the New York Times failed to ask critical questions, which only became utterly obvious–and the subject of much sanctimonious handwringing–in the incandescent glow of hindsight.

Ironically, one of the factors underpinning such maladaptive behavior is that both institutions operate behind a veil of secrecy. The CIA assiduously keeps both its methods of intelligence gathering and its internal deliberations under wraps: sources and methods, in particular, are treated as ultra-sensitive matters, disclosure of which is punishable by law.

So too with the New York Times, which, even as it calls for greater openness by the U.S. government jealously conceals its own internal workings. As with the CIA, sources and methods are treated by the Times as a matter of extraordinary sensitivity, with some of its operatives ready and willing to go to jail (Judith Miller once again!) rather than reveal who has told them what.

All of which makes the Scooter Libby trial so very compelling. A window is being opened into the internal operations of news- and intelligence-gathering at once. It is only confirming that in many of their essentials, and despite the loud protestations such a claim would elicit from both sides, the iron law of emulation holds. The Times and the CIA are becoming more similar with each passing year.

To apply for employment with the CIA’s National Clandestine Service, click here.

To apply for employment as a New York Times‘s reporter, editor, or deliveryman, click here.

In 1978, back when I was working for him on Capitol Hill, Senator Pat Moynihan propounded what he called “the Iron Law of Emulation.” The basic idea was that organizations in conflict with one another come to resemble one another. Because he was drawing on the work of the 19th German sociologist Georg Simmel, some on his staff used to call it, somewhat mockingly, the Iron Law of Simmelation.

But Moynihan’s point was a good one. And today, with former New York Times reporter Judith Miller on the witness stand in the trial of Scooter Libby, we can see the iron law at work in the fiercely adversarial relationship between the Times and the U.S. intelligence community.

The editors and reporters of the New York Times believe they are covering the CIA–and in fact they are–but they are also in competition with the spy agency and the resemblances between the two institutions are striking.

Both, to begin with, have a remarkably similar mission. The CIA is charged with trying to inform its clients (the White House and the rest of the executive branch) about the world around it: what is going on where, what are the looming dangers, what are the facts, and how do reliably do we know them? Much of what the New York Times does is precisely the same, except its client is not the government but the newspaper-buying American public.

Because they are caught up in certain characteristic American dysfunctions, both institutions carry out their functions with mixed results.

The CIA and the Times, for one thing, are both charter members of the cult of “diversity.” In 1995, the spy agency created an internal body called the Resources Oversight Council aimed “at improving the agency’s efforts to hire and provide career development for women, minorities, the deaf, and people with disabilities,” leading the CIA to hire more Hispanics at the very moment when it really needed more Arabic speakers.

The Times has been doing something quite similar, and damage has demonstrably been done. In 2006 the paper announced with much fanfare that an internal body known as “the diversity council” had concluded that “diversity is essential to our business future and our journalism.” But the emphasis on diversity had been in place for decades, and it was to figure in one of the worst debacles (see below) the newspaper ever endured.

Like any large elite organization the CIA and the Times must contend with mediocrity creeping in and gumming up the works. Thus, the CIA has kept incompetents in its ranks, including “anonymous”–a.k.a. Michael Scheuer, its top expert on Osama bin Laden, who despite his insistence on always “checking the checkables,” has enormous difficulty spelling proper names and who characterized bin Laden as “the most respected, loved, romantic, charismatic, and perhaps able figure in the last 150 years of Islamic history.” And “gentle,” too.

The Times, for its part, keeps an impressive daily log of its errors, spelling and otherwise, which despite an army of editors, it cannot seem to contain. For more serious instances of bias and misinterpretation, one need only recall the reporting by Walter Duranty of Stalin’s show trials and artificial famine in the 1930’s, the placement of the Holocaust on the back pages during the 1940’s, its depiction of the North Vietnamese defeat in the Tet offensive as a major victory, or turn to watchdog outfits like CAMERA for an array of contemporary documentation.

Both institutions, over the years, have had worse than bad apples in their ranks. The CIA has suffered outright turncoats like Soviet mole Aldrich Ames, who despite internal evaluations of egregious misbehavior was steadily promoted upward until he was in a position to give away the CIA’s most precious assets.

The New York Times has had its outright traitors, too, like the diversity-hire Jayson Blair, whose fictional reporting the paper was to call “a profound betrayal of trust.” During his five-year career progressing from intern to national reporter, the management of the Times received numerous warnings that the rising star was actually a comet waiting to crash. Despite such cautions, Blair steadily advanced, like Aldrich Ames, eventually reducing the Times to what it itself called “a low point in the 152-year history of the newspaper.”

But in both institutions, it is not deliberate bad faith that typically creates malfunction but something else. The CIA notoriously failed to foresee the attacks of September 11 and then issued an erroneous “slam-dunk” assessment that Iraq possessed weapons of mass destruction. The problem was simply that agency analysts placed too much stock in Iraqi émigré sources who were telling them what they wanted to hear. The New York Times’s credulous treatment of Saddam Hussein’s WMD arsenal fell into the same trap.

Judith Miller was front and center. In reporting on Saddam’s burgeoning (but non-existent) WMD program, she too placed too much faith in sources who were telling her what she wanted to hear. Strikingly, in both cases, the chain of command in the CIA and the New York Times failed to ask critical questions, which only became utterly obvious–and the subject of much sanctimonious handwringing–in the incandescent glow of hindsight.

Ironically, one of the factors underpinning such maladaptive behavior is that both institutions operate behind a veil of secrecy. The CIA assiduously keeps both its methods of intelligence gathering and its internal deliberations under wraps: sources and methods, in particular, are treated as ultra-sensitive matters, disclosure of which is punishable by law.

So too with the New York Times, which, even as it calls for greater openness by the U.S. government jealously conceals its own internal workings. As with the CIA, sources and methods are treated by the Times as a matter of extraordinary sensitivity, with some of its operatives ready and willing to go to jail (Judith Miller once again!) rather than reveal who has told them what.

All of which makes the Scooter Libby trial so very compelling. A window is being opened into the internal operations of news- and intelligence-gathering at once. It is only confirming that in many of their essentials, and despite the loud protestations such a claim would elicit from both sides, the iron law of emulation holds. The Times and the CIA are becoming more similar with each passing year.

To apply for employment with the CIA’s National Clandestine Service, click here.

To apply for employment as a New York Times‘s reporter, editor, or deliveryman, click here.

Read Less

Law and Order

Did Scooter Libby write a letter to New York Times reporter Judith Miller in prison containing a coded hint that she should back up his story in court? So asks New York Times reporter Neil Lewis, referring to a curious passage in a missive Libby mailed to Miller in September 2005, ostensibly releasing her from her pledge not to reveal him as her source for the identity of CIA operative Valery Plame Wilson, but possibly suggesting something else entirely. “Out West, where you vacation, the aspens will already be turning. They turn in clusters because their roots connect them,” Libby wrote.

Asks Lewis: “Was that phrase a simple attempt at a literary turn? Or was it a veiled plea for Ms. Miller to ‘turn’ with him and back up Mr. Libby’s account that he had not disclosed Ms. Wilson’s identity to her?”

The trial of Scooter Libby on perjury and obstruction-of-justice charges, now entering its second week, may not clear up the mystery of the clustered Aspens, if it is a mystery at all. And it may not clear up the new mystery, raised yesterday by Libby’s crack defense team, of whether their client was being sacrificed by White House operatives to protect Karl Rove. But the investigation of Libby and the Plame leak has gone a considerable distance toward resolving another conundrum that has bedeviled our legal system for decades: namely, whether newsmen are above the law. When the Supreme Court refused to hear Judith Miller’s appeal of her imprisonment on contempt charges, it stood by its own precedent set in 1972 in Branzburg v. Hayes that journalists, like all other citizens, are obliged to testify before grand juries regarding potentially criminal activities, including the criminal activities of their confidential sources. The “public . . . has a right to every man’s evidence,” ruled the Court.

A coalition of First Amendment activists and journalism associations is now lobbying Congress to overturn the Supreme Court’s decision by passing legislation that would create a “reporter’s privilege.” With the Democrats in power in Congress, the prospects for success are now better than they have been for a generation. But at a moment when the country is facing mortal threats from Islamic fanatics and the press has been publishing counterterrorism secrets with reckless abandon, we need a reporter’s privilege as badly as the New York Times needs another Jayson Blair. As I argue in the February issue of COMMENTARY, such a law would manage to damage our national security and do violence to the First Amendment in a single swoop.

To help defray the considerable costs of defending Scooter Libby, send a check payable to:

Libby Legal Defense Trust
2100 M Street, NW Suite 170-362
Washington, DC 20037-1233

To help defray the even more considerable costs of prosecuting Scooter Libby, send a check payable to:

Gifts to the United States
U.S. Department of the Treasury
Credit Accounting Branch
3700 East-West Highway, Room 6D37
Hyattsville, MD 20782

Did Scooter Libby write a letter to New York Times reporter Judith Miller in prison containing a coded hint that she should back up his story in court? So asks New York Times reporter Neil Lewis, referring to a curious passage in a missive Libby mailed to Miller in September 2005, ostensibly releasing her from her pledge not to reveal him as her source for the identity of CIA operative Valery Plame Wilson, but possibly suggesting something else entirely. “Out West, where you vacation, the aspens will already be turning. They turn in clusters because their roots connect them,” Libby wrote.

Asks Lewis: “Was that phrase a simple attempt at a literary turn? Or was it a veiled plea for Ms. Miller to ‘turn’ with him and back up Mr. Libby’s account that he had not disclosed Ms. Wilson’s identity to her?”

The trial of Scooter Libby on perjury and obstruction-of-justice charges, now entering its second week, may not clear up the mystery of the clustered Aspens, if it is a mystery at all. And it may not clear up the new mystery, raised yesterday by Libby’s crack defense team, of whether their client was being sacrificed by White House operatives to protect Karl Rove. But the investigation of Libby and the Plame leak has gone a considerable distance toward resolving another conundrum that has bedeviled our legal system for decades: namely, whether newsmen are above the law. When the Supreme Court refused to hear Judith Miller’s appeal of her imprisonment on contempt charges, it stood by its own precedent set in 1972 in Branzburg v. Hayes that journalists, like all other citizens, are obliged to testify before grand juries regarding potentially criminal activities, including the criminal activities of their confidential sources. The “public . . . has a right to every man’s evidence,” ruled the Court.

A coalition of First Amendment activists and journalism associations is now lobbying Congress to overturn the Supreme Court’s decision by passing legislation that would create a “reporter’s privilege.” With the Democrats in power in Congress, the prospects for success are now better than they have been for a generation. But at a moment when the country is facing mortal threats from Islamic fanatics and the press has been publishing counterterrorism secrets with reckless abandon, we need a reporter’s privilege as badly as the New York Times needs another Jayson Blair. As I argue in the February issue of COMMENTARY, such a law would manage to damage our national security and do violence to the First Amendment in a single swoop.

To help defray the considerable costs of defending Scooter Libby, send a check payable to:

Libby Legal Defense Trust
2100 M Street, NW Suite 170-362
Washington, DC 20037-1233

To help defray the even more considerable costs of prosecuting Scooter Libby, send a check payable to:

Gifts to the United States
U.S. Department of the Treasury
Credit Accounting Branch
3700 East-West Highway, Room 6D37
Hyattsville, MD 20782

Read Less




Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.