March 29, 2007
Equal Justice  
By Jack D. McNamara

Fred Gossien of Terlingua takes issue with our comments two weeks ago. Specifically he declares himself one of the “few” when we say, “few can applaud the conviction of the hapless “fall guy” (“Scooter”) Libby, former chief of staff to Vice President Dick Cheney.”

Granted. That is what is called a difference of opinion. Here’s the basis of our opinion:

Libby was convicted March 6 in federal Court on four counts of making false statements to the FBI, lying to a grand jury, and obstructing a probe into the leak of a CIA officer’s name. He awaits sentencing.

It is certain that he did the deed. Along with others at the highest levels of our government, Libby participated in an organized effort to slime the husband of the CIA officer Valerie Plame, Joseph Wilson. They did it to advance their case for the Iraq War. And, as Mr. Gossien says, it is “particularly despicable.”

But is it a crime? The flow of political slime is at the moment higher than Noah’s Flood and it is rather decisively running against Mr. Libby’s former employers rather than for them.

The Special Prosecutor in the case, Patrick Fitzgerald, set out to investigate and prosecute anyone who may have violated a statute designed to protect the identities of intelligence agents from disclosure. This is a 1970s’ statute occasioned by the murder of a CIA agent in Greece, Richard Welch.

But Mr. Fitzgerald prosecuted no one for “outing” Valerie Plame. Instead, as is the custom these days, Fitzgerald caught Libby in clumsy attempts to cover up his role in the smear campaign against Joseph Wilson.

Fitzgerald proved Libby’s lies with the testimony of journalists. Fitzgerald obtained the journalists’ testimony over their strenuous objections and the massive support of their employers — Time, Inc.; the New York Times; the Washington Post; NBC, etc. One reporter, Judith Miller of the New York Times, went to jail for 85 days to protect a source for a story she didn’t even write. (“If journalists cannot be trusted to guarantee confidentiality, then journalists cannot function and there cannot be a free press.”) Miller has left the New York Times and journalism.

Miller’s case for refusal of Fitzgerald’s subpoena led to a groundbreaking decision by the D.C. Court of Appeals. The Court said what several of us have known for some time—journalists can be forced to testify in criminal cases.

The criminal case of “outing” a covert agent? Not necessarily. Remember that no one was prosecuted for that crime, even after a competent and comprehensive investigation. Libby was the only person convicted of anything. Strong arguments have been advanced that the CIA employee, Valerie Plame, was not covered by the identity protection statute.

Hence, “fall guy.”

More importantly, we have entered a new and shadowy world for those who practice journalism. Any tinhorn prosecutor, or any defense attorney, now has a road map for how to proceed in compelling a particular kind of witness into his case. This is what they call “chilling” because it means that the government may seize the actual work product of people who are not paid much and whose duty principally concerns reporting to the public what is in the public interest. It is not only the journalist who is “chilled,” it is all those with any interest in the subject under discussion.

We are going to get dirtier cops, prosecutors and judges because often the only effective check to government corruption is an alert press.

So give the journalists a “shield,” a privilege against the courts like that of attorneys, spouses, psycho- therapists, priests, law enforcement informants, etc?

We will cheerfully accept any benefit offered; but our fellow craftsmen should be wary of the gifts offered by the Texas Legislature. For example, one bill pending is HB 2249 by Corbin Van Arsdale/Aaron Pena. In the Senate it is SB 966 by Rodney Ellis/Robert Duncan, “relating to a qualified privilege of a journalist not to testify.” The bill is 1400 words long (longer than our column).

Worse, perhaps, the bill attempts to define “journalist.” The definition rather generously includes those who work for the large media organizations who support the bill … of course. It does not necessarily protect bloggers, for example, nor does it protect those who write letters to the editor.

When legislatures and Congress set about helping America’s free press they pass laws. Though well intended for the most part, the laws themselves often become part of the problem.

The flagship of such laws is the federal Freedom of Information Act (FOIA,) originally passed in 1966. We have some great results from the law. Less great, however, is that the 40 years of experience with the law has resulted in the use of the law as a national secrecy law. What was originally intended as an exemption to release of records whose release might harm the U.S. has become the basis of a bureaucratic tangle hiding information of interest to the public.

In Texas, the Texas Open Meetings Act is a tool for the domination of local politics by prosecutors and judges. The TOMA is so bad the Texas Legislature exempts itself from the statute. Every legislative session another entity adds itself to special considerations listed in the TOMA. (See 02-08-07, “Texas Legislators and the TOMA” and 02-01-07 “Texas Legislature’s Immunity from TOMA” (Archives 2006-2007), www.nimbynews.com.
The laws are not all bad, of course. But we often lose sight of the fact the laws are intended to implement the First Amendment to the U.S. Constitution. And the Constitution protects everyone, even the bloggers.

The American press has protections only because the Founders intended that there should be a vigorous debate in our society. Lenin once said only an idiot would allow a free press. The Libby conviction does not enhance our freedom to discuss political matters. Most states have some sort of journalists’ privilege and five are currently considering state laws. But none of the shield/privileges means much unless there is a federal action.

Any Texas statute which privileges one economic sector, or one class of workers, or one set of players in the political game is a problem statute.

Either we are all protected for political discussion or none of us is. A law which protects the author of this column and does not protect Fred Gossien of Terlingua is bad law and we thank him for the opportunity to organize our thoughts on the matter. •