quote: A federal judge held a reporter in contempt Thursday for refusing to divulge confidential sources to prosecutors investigating the leak of an undercover CIA officer's identity.
U.S. District Judge Thomas F. Hogan ordered New York Times reporter Judith Miller jailed until she agrees to testify about her sources before a grand jury, but said she could remain free while pursuing an appeal. Miller could be jailed up to 18 months.
Hogan cited Supreme Court rulings that reporters do not have absolute First Amendment protection from testifying about confidential sources. He said there was ample evidence that U.S. Attorney Patrick Fitzgerald of Chicago, the special prosecutor in the CIA leak case, had exhausted other avenues of obtaining key testimony before issuing subpoenas to Miller and other reporters.
What are people's thoughts on this? Should people be allowed to withhold testimony? If the answer is a general "no," what are the conditions under which testimony should be able to be withheld? Do reporters deserve special treatment in this regard? Priests hearing confession?
Remember that at least one portion of the constitution, the 6th amendment, gives criminal defendants the right "to have compulsory process for obtaining witnesses in his favor." This means we consider it an important right to be able to compel testimony in at least some situations.
posted
The fifth allows you to refuse to testify it you will incriminate yourself. Incriminate very specifically means provide evidence that could lead to criminal liability.
It's unlikely she's exposed to criminal liability here anyway. But if she is, the prosecutor can simply give her immunity. Then she can't take the fifth, because she won't face criminal liability from her testimony.
posted
I can't really speak to the legal perspective, but from a journalistic perspective, I could see that journalism, the ability to ferret out 'the truth', would suffer greatly if people were afraid to talk, knowing that their secrecy really wasn't safe.
One interesting aspect of this that hasn't been examined is, what is a journalist? In this day and age of the internet, almost anyone can be a 'journalist'.
When I was in the military, we were given locks for lockers. If you left your locker unlocked, you were punished. If you had something stolen from your locker and it was unlocked, you could be punished, too.
I think in the same vein, there is a kind of closing the barn door after the cows have escaped aspect to this case. It's not the journalist's fault that people were willing to talk to her. If the state is having problems with security, with hiring people who can't keep their mouths shut, the solution to the problem is designing a better lock and hiring better people for your system.
The other aspect of this case involves ownership and privacy. If information revealed is 'secret', then who has broken the law? If someone posts this information on an internet site, are all the people who viewed that information breaking the law, too? In some aspects I could see it, but in others I don't.
Dunno what the answer is. I would rather err on the side of the journalist. I think it's more important to be able to get at the truth via journalism than it is to infringe on that ability, even in the cases of national security.
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posted
I think it's sort of like a journalistic merit badge to get held in contempt of court protecting a source, but I don't really get why.
Surely peopleknow they're giving up a certain amount of confidentiality when they talk to a reporter?
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posted
So are you advocating a general right to not testify, based on the witness's own ethical considerations, or one specifcally aimed at journalists.
As you mentioned, the latter would require some inquiry into who is a journalist. If it's the latter, do you support clergy-penitent confidentiality? Attorney-client? Doctor-patient? What are the criteria? Clergy-penitent and attorney-client can each lay some claim to Constitutional protection in the 1st and 6th amendments. Doctor-patient's claim would be much more tenuous.
I'm mainly interested in investigating others' views on this, because I don't think it's a topic that's often fully considered by the average person. I also haven't taken any classes on this except the right to not incriminate yourself.
Adopting a general right to refuse to testify would end compulsory testimony, which would make many civil recoveries impossible, and put a lot of defendants in a serious bind.
I don't have a clear answer for this, Dagonee. The question for me is, is the state, the people, served best by being able to compel journalists to reveal their sources, or is it served best by making a journalist's sources inviolate? I do think the latter, for reasons already given. That is, balancing both security and 'truth', I think the harm to the ability to find out the truth would effect the nation in a bad way more than the ability to be secure if journalists were forced to reveal their sources.
I don't have a good answer for what a journalist is. Posts: 13123 | Registered: Feb 2002
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posted
That's the trouble. If you make a 'journalist's' sources inviolate, what you're left with is a huge arena for abuse, precisely because we can't define 'journalist' very narrowly these days.
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posted
I find it amusing that the Ashcroft JusticeDepartment doesn't even pretend to be anything other than a wing of the RepublicanParty.
RobertNovak knows who provided the information. RobertNovak is guilty of the felony of releasing a CIA agent's name to the public. RobertNovak is liable to be held in indefinite detention under the provisions of the PATRIOT-ACT until he releases the name of the "leak"er(s). Yet Ashcroft's minions are going after only those who didn't break the law to intimidate reporters. Going after many months of phone records solely to intimidate those who provide information to reporters.
RobertNovak? Well, he's just enjoying the fruits of being a long-term Republican propagandist: no hassles, man. And Ashcroft? Doin' a fine ol' job (through proxy) misdirecting the investigation away from the DubyaAdministration. Cuz by the type information released, it is easy to know which meeting(s) discussed that "CIA spy" tidbit. And precisely who was in attendence at the meeting(s).
My guess as to the leaker would be either CarlRove, who has a long long long history of politics-by-character-assassination, or DeputySecretary of Defense PaulWolfowitz, who was sent to Iraq during the time that depositions about the leak were taken. Or one of their direct aides after a "wink wink Keep this a secret. wink wink" information-sharing session.
posted
Dagonee, what are the circumstances that a journalist has been compelled to reveal her sources, in general?
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quote:RobertNovak is guilty of the felony of releasing a CIA agent's name to the public.
No, he's not. There is no felony for a normal person releasing a CIA agent's name to the public.
The statute criminalizes three types of activities:
1. Disclosure by persons with authorized access to the identity of the agent. 2. Disclosure by persons with authorized access to information that leads to the identity of the agent. 3. Disclosure by persons "in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States"
All three require "knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual's classified intelligence relationship to the United States."
The mere act of receiving the information does not make it authorized, and as long as the person giving him the information knew Novak was a reporter, it's hard to make the case that Novak knew the U.S. was seeking to keep her identity secret.
quote:Dagonee, what are the circumstances that a journalist has been compelled to reveal her sources, in general?
I'm not sure of specifics. Generally, there has to be a subpoena, usually before a grand jury, but often before Congress as well. Prosecutors often have to show there's no other way to get the information before a judge will hold someone in contempt. Then the person can be held for up to 18 months or until they comply, whichever is shorter. Some judges will let the person out when it's clear the person will never testify. Others won't.
Prosecutors often won't even try to compel a reporter's testimony. It makes bad press. I'm not sure which situations make them more likely to seek compulsion, although something as politically charged as this doesn't surprise me.
Many states do grant a reporter's privilege to protect a source, but of course this doesn't apply to federal subpoenas.
posted
Katirin, the name was leaked, and it was a wife of one of the investigators who told GWB that there were no WMD in Iraq. He was ordered to change that testomony, and when he refused someone "just happened" to release the name of his wife, who was a CIA undercover agent.
So her missons were comprimised, adn she was put in serious personal danger.
posted
On the contrary, RobertNovak specificly mentioned that he knew of her covert status.
quote:Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction.
Ashcroft can play all the plausible deniability games he wants to protect a Republican propagandist, but "operative" is known by reporters on the DCpolitical beat to mean "covert agent"
quote: Ashcroft can play all the plausible deniability games he wants, but "operative" is known by reporters on the DCpolitical beat to mean "covert agent"
What do you mean by that? Ashcroft is the one who leaked it?
posted
I suggest you provide the amended statutes applicable, rather than those obsoleted after 9/11. Reporters who released classified information were specificly targeted by the PATRIOT-ACT for indefinite detention until the source was revealed.
posted
"What do you mean by that? Ashcroft is the one who leaked it?"
Nope, I named my choices of most probable suspects above. I am saying that Ashcroft (through those he appointed) has been impeding the investigation rather trying to find out which of Dubya's political flunkys is guilty of leaking the covert agent's name.
posted
I can't provide a link, since this is lexis, but here's the history of the statute:
quote:HISTORY: (July 26, 1947, ch 343, Title VI, § 601, as added June 23, 1982, P.L. 97-200, § 2(a), 96 Stat. 122; Dec. 3, 1999, P.L. 106-120, Title III, § 304(b), 112 Stat. 1611.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Amendments: 1999. Act Dec. 3, 1999, in subsec. (a), substituted "shall be fined under title 18, United States Code," for "shall be fined not more than $ 50,000"; in subsec. (b), substituted "shall be fined under title 18, United States Code," for "shall be fined not more than $ 25,000"; in subsec. (c), substituted "shall be fined under title 18, United States Code," for "shall be fined not more than $ 15,000"; and added subsec. (d).
Give me a cite and I'll look up the law you say supercedes this. Lexis doesn't seem to think there is one, but that's not dispositive. Of course, none of the press accounts I've read suggest criminal liability for Novak, and only a few editorials.
posted
On the contrary, prosecutions are discretionary: a prosecutor can relieve a defendent from facing criminal charges to get around the self-incrimination defense. What the government can't do is force a man to testify, then use that testimony -- or evidence derived from that forced testimony -- against him in a criminal trial. (Though even that is being eroded by the Scalia SupremeCourt.)
Which any lawyer is aware of, and which even a political appointee like Ashcroft is made aware of.
Frankly, I haven't heard that RobertNovak is going to be prosecuted -- from Ashcroft's actions so far, he won't even be investigated -- but even if he were, it would be purely discretionary. Since discovering the identity of the "leak"er(s) is presumably a more important goal than that of punishing a reporter, the only reason for Ashcroft to not decline prosecution of Novak for releasing the information is to provide Novak with a "self-incrimination" legal shield so that the "leak"er(s) will not be named.
quote:Though even that is being eroded by the Scalia SupremeCourt
Actually, Scalia is fairly adamant about the 5th amendment right to not testify and to not have compelled testimony used against the witness.
In U.S. v. Hubble, 530 U.S. 27, he joined in Thomas's concurrence as follows:
quote:I join the opinion of the Court because it properly applies this doctrine [applying the production privilege to Hubble's case], but I write separately to note that this doctrine may be inconsistent with the original meaning of the Fifth Amendment's Self-Incrimination Clause. A substantial body of evidence suggests that the Fifth Amendment privilege protects against the compelled production not just of incriminating testimony, but of any incriminating evidence. In a future case, I would be willing to reconsider the scope and meaning of the Self-Incrimination Clause.
When Scalia recognizes a right, he really recognizes it with few limitations.
That's why his dissent with Stevens in Hamdi was so important - he wanted to go far further than the majority opinion did, releasing Hamdi instead of remanding for further hearings. Similar things can be seen in Karo, where he came out against infrared scanners being used against houses without a warrant.
posted
No, you've given an obsolete legal history in hopes that I won't take the time to make the search myself. You win, I won't. You are the one with easy access to a legal library.
I am not willing to google/access what the DubyaAdmistration has allowed to be published inregard to the PATRIOT-ACT and other amendments on government sites -- primarily consisting of eg replace ";" with "," in Sentence 3, Paragraph 1, Section 12 of SB##### and remove "knowingly and deliberately" from Sentence 1, Paragraph 9, Section 43 of HB#####, etc -- then correlate them with the appropriate SenateBill and HouseBill statutes.
Frankly I don't even know if those referred-to intelligence and criminal statutes & regulations even remain on government sites. Ashcroft's JusticeDepartment has been demanding that public libraries cease carrying hardcopy books which record the laws pertaining to intelligence gathering. So if the public libraries fail to successfully defend themselves against Ashcroft's demands, the only places where one could find out what the laws are will be in legal-college libraries and paid-subscription legal databanks.
Besides, the point is moot. If your "He can't be prosecuted." is true, then there is nothing preventing the government from tossing Novak into indefinite detention until the "leak"er(s) are found. Except of course, Ashcroft's desire to protect a fellow "respectable" Republican.
posted
Right... See you've taken CarlRove to heart: if you can't counter an argument, sling some mud.
There is a difference between pointing out that someone is factually wrong versus calling them a liar. If you want to flamewar, do it on somebody else's dime.
posted
I have always been uncomfortable with the idea of people withholding testimony...I recognize that there is some utility in being able to get the information from them that they wouldn't give if they knew it could be used against them, but still, to some degree, what is the point of knowing if it doesn't let you prosecute?
From a religious freedom perspective, I understand about the clergy-parishoner privilege, but it's not a part of my religious beliefs. There's no confession to a priest in my church--you confess, if applicable, to the person wronged, and the assumption seems to be that if you're not willing to be justly punished, by the law if necessary, you're not really penitent. So that has doubtless affected my viewpoint on privileged conversations in general.
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quote:There is a difference between pointing out that someone is factually wrong versus calling them a liar. If you want to flamewar, do it on somebody else's dime.
I'm simply trying to determine where you got the idea that Novak could be convicted. You have this idea. You're comfortable enough with it to dispute my finds on the subject.
Where did you get?
quote:See you've taken CarlRove to heart: if you can't counter an argument, sling some mud.
And this is rich - I'm the one who HAS countered your argument. I'm the one who has provided evidence. You're the one who's accused the administration of trying to hide laws from the public, and then using it as your excuse to provide backup for your assertions that are, as best we can tell from the evidence, flat out wrong.
posted
I disagree 100% with the idea that being willing to submit to the punishment the state will dish out to you for your crime makes one truly penitent. To use a stupid example, let's say that the legal penalty for lying was a swift kick in the nuts. Now, I can lie and on my own recognize that telling the lie was very bad and stupid and be completely remorseful without having the state step in and administer that kick in the nuts.
Further, since I am truly penitent, I want to mitigate or heal the damage my lie caused. How does getting kicked in the nuts help me do this?
So, from the perspective of feeling penitent, and the perspective of correcting the harm done, I disagree that your belief is always true.
I'm assuming, by the way, that the submitting to legal authority isn't a religious tenet, but a personal one. If that belief is a religious one, then I'm sorry to have argued with you.
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posted
I think in the Catholic Church it is situational - a person might not have to admit a crime if there's no victim to compensate, no ill-gotten gains retained, and no one else accused of it. I might be wrong - it hasn't come up for me.
But the Church would expect the person to got to the authorities on their own, not tell on them.
Violating the seal is an automatice excommunication.
posted
It is a religious belief, SS, but arguing is a religious belief too...sort of. Debate is an accepted practice for figuring out the truth. So I don't mind at all. (We can get pretty rowdy.)
Notice that I said "just punishment". There would be more legitimacy for not going to the police in the kind of case you cited, though some people would still pressure you to do it, because a swift kick in the nuts isn't really all that just a punishment for lying.
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quote: Notice that I said "just punishment". There would be more legitimacy for not going to the police in the kind of case you cited, though some people would still pressure you to do it, because a swift kick in the nuts isn't really all that just a punishment for lying.
Why does being punished have to factor in at all for sinning?
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There is a temporal component to punishment that helps ensure (to yourself and to society) that you won't do it again. Submitting to that both demonstrates that you really are sorry and helps you where you may have a weakness (next time you're tempted, you remember the unpleasant situation that resulted last time). A person is always free not to punish if they think you are sufficiently sorry; there's nothing wrong with that.
At least, that's the theory.
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quote: There is a temporal component to punishment that helps ensure (to yourself and to society) that you won't do it again.
Possibly. Or it could change you so that you commit more sin. What, too, of the aspect that by submitting yourself to temporal authority that you are mutilating yourself, or killing yourself either figuratively, and quite possibly literally?
quote: Submitting to that both demonstrates that you really are sorry
I would say that working to do more good in general, and to correct the wrong you specifically did, rather than allowing yourself to be locked away, fined, or killed, shows you really are sorry.
And why do I have to prove to anyone else that I really am sorry? If I know I'm 'really sorry', God knows I'm really sorry, then why do I have to prove it to anyone else other than, possibly, the person I wronged?
quote: and helps you where you may have a weakness (next time you're tempted, you remember the unpleasant situation that resulted last time). A person is always free not to punish if they think you are sufficiently sorry; there's nothing wrong with that.
I agree that some 'punishments' may help to do that. My problem is that sometimes the punishments that society comes up with may, depending on the person, do nothing, make the person more 'bad', or harm the person far out of proportion to their sin. In addition, what if the person is a provider and by allowing themselves to be locked up, they very much harm their family? Isn't someone who is being a good role model to their family, doing good deeds where the world can see them doing good deeds, a better force for good than someone who is out of hte public view and who has no contact with her family?
It's still not at all clear to me why submitting to temporal authority is best.
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posted
I agree with Storm. Which is why I support Restorative Justice models, Victim-Offender Mediation, alternative sentencing, and anything else to break the mindset that justice is done by administering harm to the offender, rather than by healing, to the greatest extent possible, the harm that’s already been caused.
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The question for me is, is the state, the people, served best by being able to compel journalists to reveal their sources, or is it served best by making a journalist's sources inviolate? I do think the latter, for reasons already given. That is, balancing both security and 'truth', I think the harm to the ability to find out the truth would effect the nation in a bad way more than the ability to be secure if journalists were forced to reveal their sources.
