Embedded: Judy Miller, Government Agent

Slate's Mickey Kaus opines:

Here is how the NYT itself reported the final argument made on behalf of Judith Miller before she was jailed:

Robert S. Bennett, a lawyer for Ms. Miller, urged Judge Hogan to conclude that Ms. Miller would never talk, making confinement pointless.

It's now clear confinement wasn't pointless. It worked for the prosecutor exactly as intended. After a couple of months of sleeping on "two thin mats on a concrete slab," Miller decided, in her words, "I owed it to myself" to check and see if just maybe Libby really meant to release her from her promise of confidentiality. And sure enough-- you know what?--it turns out he did! The message sent to every prosecutor in the country is "Don't believe journalists who say they will never testify. A bit of hard time and they just might find a reason to change their minds. Judy Miller did." This is the victory for the press the Times has achieved. More journalists will now go to jail, quite possibly, than if Miller had just cut a deal right away, before taking her stand on "principle."

The whole Miller/Plame affair has been a blow to confidential sources and journalism. But Kaus and just about everybody are wrong about why. In fact, the whole lot of them are part of the problem.

To see why, it's worth taking a step back and reviewing the argument for journalist shield laws and their right to protect confidential sources. The idea is some people, with knowledge of wrongdoing, won't come forward to talk to journalists if they fear that after the story is published the government will be able to compel the revelation of their identity. This is an especially compelling argument when the wrongdoing it happening in the government.

But is that what happened in the Miller affair?

Did some whistle-blower come forward with some information the public had a right to know? Did Libby (or Rove or Cheney or somebody) seek Novak, Cooper and Miller out to expose some government evil at risk to their own job? No. In this instance, the communication between the source and "journalist" was the wrongdoing. I put "journalist" in quotes because, at that moment, Miller wasn't acting as a journalist. This isn't a question of ethics (well, it is, but that's not the relevant bit right now). It's a question just what journalism is. Let's make this easy. If Miller was with a "confidential source" and witnessed that source murdering someone, no one in their right mind would argue that she shouldn't report the crime to protect "journalism". And if Miller were a party to that crime, an actual participant in it, even after the fact or indirectly, no one would call participating in a crime "journalism." If Libby did reveal the name of a CIA agent, he committed a crime. Miller witnessed that crime. Then she covered it up. Had she publicly revealed the name, like Novak, she would have been a full fledged participant in it.

Shield laws are supposed to expose criminals not protect them. And shield laws should never be used to protect or excuse wrongdoing on the part of the journalist themselves. It's a critical difference. This is not a case of murky ethical lines. The distinction between this case and real journalism is clear and distinct. And every defender of journalistic freedom that uses the Miller case as an example of a journalist defending the First Amendment does a grave diservice to their cause.

Some noise is being made about the revelation in the NYT piece on the Miller affair yesterday that she had received a security clearance while embedded in Iraq. Critics rightly point out that a "journalist" has no business agreeing up front to not reveal information as one must when one gets a security clearance. But it seems to me to make no difference if Miller signed a legal document agreeing to keep the government's secrets or agreed to do so in a less formal way. Neither is journalism.