Back to first principles

Judith Miller is about to become a national hero, at least for the press. She’s the New York Times reporter who has refused to rat out her confidential sources. True to her journalist’s code, she’s being jailed for contempt — and she never even got to write a story based on what her source told her. Talk about the worst of both worlds. But look at the bright side: Her time in the cooler will make for some fascinating copy.

Miss Miller, it seems, has found herself on the wrong side of the law. We know that because (a) a judge has said so, and (b) she seemed to be asserting a right to — no, not a right to publish a story — but to defy the law.

This case wasn’t so much about freedom of the press as withholding evidence.

Judith Miller’s devotion to principle is exemplary; unfortunately, it’s a mistaken principle. She’s practicing civil disobedience in a dubious cause, but she’s practicing it sincerely: She is going to jail for her beliefs. My compliments to the lady. In a better world, her courage would get more respect.

As for Time magazine, whatever code it’s practicing, it’s not civil disobedience. In the end, when push came to jail time and heavy fines, Time chose to cooperate with the prosecutor. Its reporter, Matt Cooper, announced he was released from his pledge of confidentiality by his source at the last suspenseful minute. And he agreed to cooperate, too.

Both the magazine and its reporter had their reasons to find discretion the better part of confidentiality in this case. Indeed, those reasons may include a genuine and admirable respect for the law. Having never had the honor of going to jail for my views, I am not about to sneer at those who prefer not to.

But as for The New York Times itself, well, this case abounds in ironies. As long as the only ones in danger of going to jail were members of the Bush administration who might have been the source of this story, the Times demanded an unhindered investigation of who leaked the identity of Madame X, aka Valerie Plame.

That newspaper’s uncharacteristically forceful editorial position left the impression the once Good Gray Lady was fightin’ mad. She seemed to want somebody to pay, preferably somebody high up like Dick Cheney or Karl Rove. At the time, I attributed it to the usual election-year madness. Partisan passions often color folks’ idea of what constitutes justice. Or law.

Well, now the Times has its uninhibited investigator, not to say a loose cannon. And it’s objecting mightily to the result — jail time for one of its own. How dare they. This clearly wasn’t the result the Times had sought. The wrong person is going to jail.

That was pretty much the same reaction Ann Cooper, executive director of the Committee to Protect Journalists, put into so many words when she reacted sharply to the news a reporter was being placed in custody:

“Governments worldwide have taken note of the decisions made by the U.S. prosecutor and courts in this case. We are deeply concerned that an investigation intended to uncover potential wrongdoing by U.S. government officials has instead sent a terrible message to the rest of the world. Repressive regimes who routinely jail journalists have already used this case to justify their actions.” The wrong person is going to jail. That is, one of Us instead of one of Them. (The committee wants it understood it has taken no position on whether government officials should be jailed in this case.)

The Times clearly misses its glory days, when the Pentagon Papers were the big story and the country had a president Central Casting might have sent over if a director had called for a Richard III. There is a danger in wanting to relive the past. Present circumstances may be different, however much we’re tempted to see parallels.

Gentle Reader may choose the moral of this story. For example:

Be careful what you wish for.

The law is a two-edged sword.

There’s no shortage of sayings to cover this convoluted and overdone investigation. When all the facts are in, what we have here may turn be a classic case of prosecutorial indiscretion.

It isn’t clear any crime was committed, yet this prosecutor seems determined to throw a reporter in jail for not testifying about it. What a travesty.

But one good thing is that, however irksome, it should take all of us in the press, at the bar, and just as citizens, back to first principles. Principles like the rule of law and civil disobedience. The first step toward wisdom may be the ability to recognize each, and distinguish them from each other.

Paul Greenberg is a nationally syndicated columnist.