"Get your facts first, and then you can distort them as much as you please." (Mark Twain)

Wednesday, July 06, 2005

It's a Privilege 

As one who has consistently supported a robust interpretation of the privilege available to reporters with respect to confidential sources, I am surprisingly untroubled by the troubles facing Matt Cooper of Time Magazine and Judith "Kneepads" Miller of the New York Times.

In general, I think the privilege serves an important public purpose. Mark Felt would not have fed the Woodstein and Bernward beast but for the promise of confidentiality, and thus Nixon's high crimes and misdemeanors would have never been revealed. But on a smaller scale, every newspaper in America covering state and local politics, say, or the operation of powerful regulatory agencies (ripe targets for corruption if ever there were such), rely on confidential informants all the time. Indeed, without confidentiality, we may never have learned about Abu Ghraib, the Gitmo Gulag, and the Downing Street Minutes - at least, not in the same level of detail.

However, when the government games the system, and hides behind the reporters' privilege to spew lies and propaganda for its own purposes, then the public benefit disappears. That is clearly what happened here - the Bush administration leaked Valerie Plame's identity to discredit and retaliate against her husband, Ambassador Joseph Wilson, and relied on the reporters' promises of confidentiality to cover their greasy fingerprints. On policy grounds, this sort of thing cannot be allowed.

Arguments based on policy are dangerous things, however, sometimes leading to slippery slopes and unintended consequences. It is best to avoid them if there is a tidier way to get to the necessary result. And, it appears, there is a tidier way in this case.

The reporters' privilege is often compared to better established testamentary privileges, such as the one between lawyers and their clients. Fair enough. Recall, however, what Lawrence O'Donnell had to say on The McLaughlin Group last Sunday morning:
I revealed in yesterday's taping of the McLaughlin Group that Time magazine's emails will reveal that Karl Rove was Matt Cooper's source. I have known this for months but didn't want to say it at a time that would risk me getting dragged into the grand jury....

Since I revealed the big scoop, I have had it reconfirmed by yet another highly authoritative source. Too many people know this.

The attorney-client privilege will be withdrawn if either the attorney or the client fails to protect the confidentiality of the privileged communication. If I confess to my lawyer that I stole the money, she can't tell anyone else what I said. However, if I then confess to my bartender that I told my lawyer that I stole the money, the privilege evaporates. In the Plame case, if we can take O'Donnell at his word, it appears that someone - whether the leaker or the leakee is not clear at this time - spread the story throughout the Washington press corps. By analogy to the attorney-client privilege, this careless gum-flapping ought to be enough to destroy whatever privilege may have originally attached.

If you've got a secret, then have a secret. But if you tell everyone in town your secret, it's not a secret anymore - no matter how often you say "...but don't tell anyone, 'kay?"




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