The Public Pressure on Subpoenas

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Yesterday, there were two stories about subpoenas of journalists that suggest something about journalist subpoenas. The first story involves an attempt by some Phoenix big-wigs to cow the alternative New Times into backing off investigations into them.

In a breathtaking abuse of the United States Constitution, Sheriff JoeArpaio, Maricopa County Attorney Andrew Thomas, and their increasinglyunhinged cat’s paw, special prosecutor Dennis Wilenchik, used the grandjury to subpoena "all documents related to articles and other contentpublished by Phoenix New Times newspaper in print and on the PhoenixNew Times website, regarding Sheriff Joe Arpaio from January 1, 2004 tothe present."

Every note, tape, and record from every story written about Sheriff Arpaio by every reporter over a period of years.

The New Times published news of the subpoena, the Sheriff arrested New Times’ execs, and then–after these events received national attention, the County Attorney sheepishly dropped the investigation into the paper, claiming he hadn’t known the direction the investigation had been headed. The subpoena of the press (and its readers) was a clear abuse of power on its face and the publication of that subpoena forced the County to drop its investigation.

One note: this abuse of power was really little more than an Read more →

Trojan First Amendment

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In his book, Unequal Protection, Thom Hartman shows how corporations (specifically, railroads) used the 14th Amendment–which ostensibly guaranteed African Americans the same rights other citizens enjoyed–to enshrine the concept of corporate personhood in our legal system.

With the passage of the Fourteenth Amendment, the owners of the what werethen America’s largest and most powerful corporations – the railroads -figured they’d finally found a way to reverse Paine’s logic and no longerhave to answer to “we, the people.” They would claim that the corporation isa person. They would claim that for legal purposes, the certificate ofincorporation declares the legal birth of a new person, who should thereforehave the full protections the voters have under the Bill of Rights.

[snip]

Acting on behalf of the railroad barons, attorneys for the railroadsrepeatedly filed suits against local and state governments that had passed lawsregulating railroad corporations. They rebelled against restrictions, and mostof all they rebelled against being taxed.

The main tool the railroad’s lawyers tried to use was the fact thatcorporations had historically been referred to under law not as “corporations”but as “artificial persons.” Based on this, they argued, corporations shouldbe considered “persons” under the free-the-slaves Fourteenth Amendment andenjoy the protections of the constitution just like living, breathing, humanpersons.

It’s an important lesson in history–but also an important lesson in Trojan Horses. That is, when you’re passing legislation, you might want to think about the unintended consequences the most powerful entities in the State might make of that legislation.

Case in point is the reporter shield bill just passed 398-21 in the House. The bill gives several acceptable reasons why the government can force a reporter to reveal her sources in a criminal investigation (after exhausting all other means of learning the source and proving the public interest in disclosing the source outweighs the public interest in the free flow of information). Those reasons are:

The Murdoch Media Service Obliges GOP Lies

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Gosh, what a remarkable coinkydink. This morning, Roll Call comes out with this story:

Specifically,Republicans are planning to use the kidnapping and subsequent murder ofthree U.S. soldiers in Iraq earlier this year to put a "human face" onthe issue, the House staffer explained. According to this aide, whileDemocrats’ arguments about privacy may resonate with some voters,Republicans believe using real-world examples of how a weak FISA hasput U.S. troops in danger will help galvanize public support for theirposition.

"We’recontent to have the Democrats make these abstract and obtuse privacyarguments," the aide said. "As long as we make this debate … aboutreal world, human examples," Republicans believe they can maintainparty discipline on Bush’s veto and effectively fight Democrats in thepublic arena.

And on the very same day, Murdoch’s rag comes out with this story.

Ensuring Quality

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Like Susie, I think this is a really cool idea.

Paul E. Steiger, who was the top editor of The Wall Street Journalfor 16 years, and a pair of wealthy Californians are assembling a groupof investigative journalists who will give away their work to mediaoutlets.

The nonprofit group, called Pro Publica, will pitcheach project to a newspaper or magazine (and occasionally to othermedia) where the group hopes the work will make the strongestimpression. The plan is to do long-term projects, uncovering misdeedsin government, business and organizations.

But I’m just as interested by the dilemma it will present traditional media: how will they assess this content? Cue Bill Keller making a typically idiotic comment that demonstrates what I mean:

Bill Keller, executive editor of The New York Times, said The Timeswould be open to using work from an outside source, “assuming we wereconfident of its quality,” but that “we’ll always have a preference forwork we can vouch for ourselves.”

How is it that an entire industry of people paid to write and think critically cannot imagine how they would go about assessing the quality of a text they didn’t write themselves? How is it that Bill Keller, with a lifetime career in journalism, couldn’t look at an investigative article and assess whether it was great or was crap? How is that Bill Keller, who presided over Judy Miller’s demise and has been saddled with Michael Gordon’s credulous reporting of late, puts so much stock in the NYT’s ability to vouch for themselves the quality of journalistic work.

Who Were the Other Two?

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Chris Matthews partly confirms something I speculated last week–though he adds a bit too. Given his description of the three staffers "linked to Cheney" who tried to silence his reporting on OVP’s involvement in the Niger uranium claims that got us into war, it’s safe to assume Libby’s call relates to that effort (and I’d bet there’s a Adam Levine call, too).

Matthews says that there was a "concerted effort" — carried out bythree people linked to Cheney — to kill discussion of the roleCheney’s office played in trumpeting a supposed nuclear threat fromIraq.

"I thought on the 10th anniversary it would be good to celebrate theFirst Amendment, which gives us all our living," Matthews tells TVGuide. "We reviewed in brief the remarkable experience of covering theClinton [scandal] and the defense of the war with Iraq. And thedifference in these two cases was that although I was extremely toughon Clinton, there was never any attempt to silence me — whereas therewas a concerted effort by [Vice President Cheney’s office] to silenceme. It came in the form of three different people calling trying toquiet me."

Libby is clearly one of the three–after all, he is paying for his criminal ways (oh wait. Read more →

Senate Minority Leader Fuels the Flames

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ThinkProgress got the email that Mitch McConnell’s staffer claimed he had not sent out.

Seen the latest blogswarm? Apparently, there’s more to the story on thekid (Graeme Frost) that did the Dems’ radio response on SCHIP. Bloggershave done a little digging and turned up that the Dad owns his ownbusiness (and the building it’s in), seems to have some commercialrental income and Graeme and a sister go to a private school that,according to its website, costs about $20k a year ‹for each kid‹despite the news profiles reporting a family income of only $45k forthe Frosts. Could the Dems really have done that bad of a job vettingthis family?

Gosh. You think maybe the mainstream press, which claims to pride itself on its accuracy, will admit that this smear was not solely blog-driven?

Don’t answer that.

Blogger in the Eye of the Beholder?

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The NYT manages to understand that the Republicans went overboard with their attacks on Graeme Frost. But there’s something else they don’t seem to understand.

In recent days, Graeme and his family have been attacked byconservative bloggers and other critics of the Democrats’ plan toexpand the insurance program, known as S-chip.

[snip]

But Michelle Malkin, one of the bloggers who have stronglycriticized the Frosts, insisted Republicans should hold their groundand not pull punches.

“The bottom line here is that this familyhas considerable assets,” Ms. Malkin wrote in an e-mail message.“Maryland’s S-chip program does not means-test. The refusal to doassets tests on federal health insurance programs is why federalentitlements are exploding and government keeps expanding. IfRepublicans don’t have the guts to hold the line, they deserve to losetheir seats.”

As for accusations that bloggers were unfairlyattacking a 12-year-old, Ms. Malkin wrote on her blog, “If you don’twant questions, don’t foist these children onto the public stage.” [my emphasis]

You see, according to the NYT, if someone does something so far beyond the pale that all sane people would object, that person must be a blogger.

To be fair, the first known attack on the Frost family came from a Freeper. And Michelle Malkin did Read more →

Society of “Professional” “Journalists” Proves It Is Neither

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Via RawStory, I see that Bob Novak claims that Joe Wilson didn’t warn him strongly against outing Valerie in his column.

Columnist Robert Novak said Saturday Ambassador Joe Wilson did notforcefully object to the naming of his CIA operative wife, ValeriePlame Wilson, when Novak spoke to him prior to the publication of acolumn that sparked a federal investigation and sent White House aideI. Lewis “Scooter” Libby to jail.

[snip]

Novak forcefully defended his handling of the column and the legalwrangling that surrounded the special counsel investigation in aseminar on the CIA leak case at the 2007 Society of ProfessionalJournalists Convention.

Click through to RawStory to see Wilson’s response. But before we ever get there, let’s take a step back, shall we?

Novak made this claim–one he didn’t make in his book and didn’t make (as far as I know) under oath–at the conference of the Society for Professional Journalists. In other words, an organization that claims to abide by the following ethics…

  • Seek truth and report it
  • Minimize harm
  • Act independently
  • Be accountable

… invited Bob Novak to give a "super session" speech at their yearly convention. Novak, over the course of his reporting on this story, replicated the talking points given by the White House, ignored warnings from the Read more →

Is This Just a Reference to Libby’s Harrassment?

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A lot of folks have noted Tweety’s latest chirping.

Chris Matthews had barely finished praising hiscolleagues at the 10th anniversary party for his “Hardball” showThursday night in Washington, D.C. when his remarks turned politicaland pointed, even suggesting that the Bush administration had "finallybeen caught in their criminality."

In front of an audience that included such notables as Alan Greenspan, Rep. Patrick Kennedy and Sen. Ted Kennedy,Matthews began his remarks by declaring that he wanted to "make somenews" and he certainly didn’t disappoint. After praising the draftersof the First Amendment for allowing him to make a living, he outlinedwhat he said was the fundamental difference between the Bush andClinton administrations.

The Clinton camp, he said, never put pressure on his bosses to silence him.

“Not so this crowd,” he added, explaining that Bush White House officials — especially those from Vice President Cheney‘soffice — called MSNBC brass to complain about the content of his showand attempted to influence its editorial content. "They will notsilence me!" Matthews declared.

"They’ve finally been caught in their criminality," Matthews continued,although he did not specify the exact criminal behavior to which hereferred.

This certainly deserves a follow-up. But on its face, Matthews may be referring to nothing more than Libby’s calls Read more →

Wherein emptywheel Disagrees with PatFitz

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As some of you might remember way back, I first got sucked into the Plame investigation when Judy Miller was heading to jail. I found her appeal to a non-existent reporter’s privilege a farce, given that her relationship with the Bush Administration had long dropped any pretense of journalism.

So it may surprise you that I think Patrick Fitzgerald uses the wrong approach in his editorial lobbying against the shield law before Congress. Mind you, I don’t think his intent is wrong–I find the shield law flawed on several counts. But his argument doesn’t admit the problematic context in which leaks currently exist.

For example, Fitzgerald is speaking exclusively as a prosecutor when he complains about the way the shield law would hamper any investigation of national security leaks. I take his representation at his word–I trust the shield law would make it nearly impossible to investigate the kinds of leaks (through Judy to the Islamic charities, through Judy–Cheney hoped–to out Plame) Fitzgerald has been investigating. Not surprisingly (in this he is as consistent as always), he accepts that leaks endanger national security, citing Robb Silberman and 9/11 Commission.

Yet before we get to the point where we’re basing arguments on a shield law, we need to accept that  over-classification, willful Administration leaks, and refusal to submit to the oversight of citizens is just as serious a danger to our country as leaks about warrantless wiretapping. That is, when we’ve got a government that has refused to submit to the transparency on which our government relies; it has made the entire classification system into one big bureaucratic joke, a tool of the abuse of power. Which doesn’t mean you shouldn’t investigate leaks (on the contrary, it’d be nice to actually bust these guys for breaking their own rules). But it doesn’t mitigate the need to provide some protection for real journalism. There are people who could be prosecuted under the Espionage Act who we, as a society, would prefer avoid any prosecution. While many journalists have proved remarkably unable to judge which are the good leaks and bad leaks, the judiciary should not be in a position to determine which leaks serve the interests of the citizen and which do not (after all the judiciary should administer the law equally, not determining which of Dana Priest’s and Eric Lichtblau’s sources were good or bad leakers). So perhaps the thing to do is first amend the Espionage Act, to eliminate the danger that important leaks will be punished, before we rest easy with the current system.