To many conservatives caught up in the controversy over the indictment of Scooter Libby, the national shield-law proposal under consideration before the Congress looks like a reasonable idea. After all, if we’d had such a law two years ago, former New York Times reporter Judith Miller might have been protected from revealing details about her conversations with Scooter Libby, and Libby might have been spared indictment for lying during the course of an investigation many conservatives consider baseless and politically motivated. In addition, the law’s most vocal champion is Miller herself, a reporter many conservatives admire because unlike many of her former colleagues, she didn’t feed a steady stream of liberal propaganda into the paper of record. Her reporting on weapons of mass destruction may have been flawed, but at least she started from the position that between Saddam and the Bush administration, the latter should get the benefit of the doubt.
This is all understandable. Nevertheless, the national shield law is a bad idea. Going into the debate over its passage, conservatives should not think of Judith Miller. They should think of Joseph Wilson, Michael Scheuer, and Dana Priest.
While it’s well-known that the investigation into who anonymously leaked CIA officer Valerie Plame’s name to reporters began after Robert Novak published a column about her husband, Joseph Wilson, it’s less well-known that months before Wilson went public with his criticisms of the Bush administration, he himself had been anonymously leaking information about his CIA-sponsored fact-finding trip to Niger–first to Nicholas Kristof at the New York Times, then to Walter Pincus at the Washington Post and two reporters for The New Republic. Wilson leaked details of the trip–such as how he had been chosen for the mission, what he reported to the CIA when he returned, and what the CIA reported to administration officials about his trip–that a Senate Intelligence Committee investigation revealed to have no basis in fact.
For some reason, the CIA did not make Wilson promise to keep his trip confidential–a detail that casts the entire episode in a more suspicious light. But if it had, and the Justice Department had wanted to investigate Wilson for leaking details about a CIA fact-finding mission, then a national shield law would have protected Kristof, Pincus, and others from testifying about their conversations with Wilson. (Ultimately, Wilson’s vanity got the better of him, and he told his literally incredible tale in a New York Times op-ed in July of 2003.)
In defense of a shield law, Miller and others hold up the example of the brave whistleblower who anonymously tells a reporter about misdeeds within a government bureaucracy or large corporation. But leaks such as the ones Wilson was spreading in the summer of 2003 are far more common. In fact, Wilson’s leaks occurred within the context of a CIA at war with the White House over which would take the fall for faulty pre-war WMD intelligence–the CIA for getting it wrong, or the White House for exaggerating it. A number of leaks came out of the CIA after the invasion criticizing the administration’s Iraq policy, culminating with the publication of Imperial Hubris by “Anonymous,” a CIA analyst named Michael Scheuer. When I spoke about the Plame case earlier this year with Adm. Bobby R. Inman, former deputy director of central intelligence, he said of Scheuer’s book:
I was utterly appalled during the 2004 election cycle at the number of clearly politically motivated leaks from intelligence organizations–mostly if not all from CIA–that appeared to me to be the most crass thing I had ever seen to influence the outcome of an election. I never saw it quite as harsh as it was. And clearing books to be published anonymously–there was no precedent for it.
Inman also told me that when they asked him why he did it, John Walker–a Navy intelligence officer who became one of the most damaging double agents in American history–said that one day after decoding a classified message and sending it off, the next day he read the contents on the front page of the Washington Post. He said, “Well, if others are doing it, why shouldn’t I?”
That brings us to Washington Post reporter Dana Priest, who broke the story about a network of classified CIA prisons used to detain and interrogate high-value al Qaeda detainees. As Christopher Fotos pointed out in a good analysis of the story, it’s pretty clear that most of Priest’s anonymous sources are far from neutral on the issue: “Here, most of the time Priest cites ‘intelligence officials,’ she should say ‘who oppose the secret prison program and hope to destroy it by leaking classified information.’” As it did with the leak of Valerie Plame’s name, the CIA referred the possible disclosure of classified information to the Justice Department–after Bill Frist and Dennis Hastert called for an investigation.
A national shield law would give Dana Priest immunity from telling investigators who potentially broke the law by giving her classified national-security information. But worse, it would enshrine into law a political culture in which leaking to the press is the preferred method to settle scores and undermine policies without being held accountable. The biggest lies Joseph Wilson told were not the sly elisions of fact in his New York Times op-ed. They were the out-and-out untruths he told to reporters when he was still just a “former ambassador” for attribution–such as telling Kristof he had seen documents he couldn’t have seen and that he had debunked them for the CIA.
Worse, the national shield law currently before the Congress would give the government the power to decide who’s a journalist and who’s not–or worse, what journalism is. Judith Miller, the law’s most forceful advocate, told a room full of bloggers at the Open Source Media launch party last week that the law probably would not cover all bloggers. She said, as have the bill’s sponsors in Congress, that there were a lot of questions over which bloggers would be covered and which wouldn’t, but that ultimately the courts would decide on a case by case basis.
Great. Other than Congress, that’s exactly the institution I want meddling in journalism.
Fortunately, Sen. John Cornyn gave a speech via satellite a few minutes later in which he expressed skepticism about a national shield law and instead offered two alternatives that would benefit the future of journalism as much as the shield law would harm it. First of all, Congress needs to pass a bill to exempt bloggers from the McCain-Feingold campaign-finance legislation. Such a bill has been languishing in the House, but the blogopshere isn’t likely to let it sit for long. Second, Congress needs to continue on the path of Freedom of Information Act reform that Cornyn has outlined. These reforms, which would make it easier and faster for journalists, bloggers, and everycitizen to get access to government information, would do much more for the public’s right to know than a national shield law.
Advocates of the national shield law say it would enhance the freedom of the press. But the Plame affair has shown that when the source becomes the story, reporter-source confidentiality actually stands between the public and the truth. In addition, there are two reforms–an exemption from McCain-Feingold for bloggers and Freedom of Information Act reform–that would do much more to protect the First Amendment, yet have failed to garner the same attention as the national shield law. The reasons for this should be obvious: The two reforms empower bloggers and citizen journalists. The national shield law empowers the mainstream press, which has used its bigger megaphone to campaign for it. But when these national papers and big-name journalists urge you to support a national shield law, don’t think of Judith Miller. Think of Joseph Wilson, and ask yourself if that’s the kind of “journalism” you’d like to see protected.
–Stephen Spruiell reports on the media for National Review Online’s new media blog.