At the end of a long work day on other stories, I ventured over to the federal courthouse to watch our democracy in action, or rather, our democracy in inaction, or even much, much worse... an assault on our democracy and the First Amendment.
The occasion was a hearing before Federal District Court Judge Thomas Hogan, who appears intent on sending reporters Matthew Cooper of Time and Judith Miller of the New York Times
in jail for criminal contempt of court for refusing to identify their sources to a special prosecutor, who is conducting a criminal investigation as to who in the Bush administration leaked undercover CIA officer's Valerie Plame's identity to the press.
I had other reporting chores during the day, so I arrived at the federal courthouse quite late. Unbeknownst to me, the hearing had just let out, and as my elevator door opened to the fourth floor of the courthouse, standing directly in front of me was a small mob of very, very well dressed, dour, serious, and glum looking people. There was exactly one of me and well, a throng of them, and my sole presence in the elevator was as much a surprise to them as theirs was to me.
They were a well behaved bunch of folks, all wearing very serious clothes, but all the same, very intimidating. Being the courthosue and all, some of them had that Elliott Ness look.
"I'm not sure who you people are," I blurted out, "but I think I am just going admit my guilt."
That lightened up the mood somewhat. Among those waiting for the elevator was one of the reporters who may go to jail (Judith Miller of the Times), two of her attorneys (Bob Bennett and Floyd Abrams), and at least a couple of the federal prosecutors who had just asked Judge Hogan to send the reporters to jail. (To put my two cents in here-- what else is a blog for after all?-- I think that prosecutors and defense attorneys perhaps should take seperate elevators, as perhaps should the various parties to a divorce.)
"So, Ms. Miller", I asked the famous (or infamous, depending on your point of view) Judith Miller, "I don't want to wait for the morning Times to find out what just happened in there. Can you tell me?" Always protecting corporate profits, she suggested that if she told me, I wouldn't buy the next day's paper. Whatever one thinks of Judith Miller, at least she keeps her good humor and grace during tough times.
By the time I was done exchanging pleasantries with Bob Bennett and Floyd Abrams, there were those who were wondering if this particular blogger was not himself someone secretly famous.
Everyone was trying to make the best of a sad day: two reporters facing jail time for refusing to identify their sources.
But it was ultimately what happened outside the courthouse, rather than inside, that was the most disturbing. Time magazine's attorneys had said that they were seriously considering turning over to federal investigators Matthew Cooper's notes in a last minute effort to spare him from jail.
Before the cameras outside the courthouse, according to this Associated Press account, Matthew Cooper said: "On balance, I think I'd perfer they not turn over the documents, but Time can make that decision for itself." Cooper then went on to say the decision as to whether his notes would be given up might be a "corporate" one, in which he might play no role.
It is understandable why Time might not want one of its reporters to go to jail, but it is inexcusable for the magazine and its reporter to consider turning in their source. There has been much written lately as to how the special prosecutor investigating the Plame affair, Patrick Fitzgerald, has such little regard for the First Amendment. I personally think it is an unfair rap. But one thing was for sure at the end of the day: by suggesting that they might give up Cooper's notes, Time magazine was doing more to harm the freedom of the press than anything anyone in government has done.
As to Cooper, it is difficult to believe he has no say in the decision as to whether to turn over his own notes. He appears to want it both ways: to portray himself as a First Amendment martyr, without having to pay any price, and then blame his corporate bosses for acting against his wishes. Matthew Cooper should clearly state that his notes shouldn't be turned over, and if they are-- against his wishes-- resign his job in protest.
At the federal courthouse today, one came away with the awful feeling that it was not the government that was the worst threat to freedom of the press, but once again, sadly....
Our freedom of the press is being most imperiled by the press itself. How sad. How very, very sad.
Ten Years Ago on Grasping Reality: May 25, 2008
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