Editorial del New York Times
del 7 de Julio de 2005
This is a proud but awful moment for The New York
Times and its employees. One of our reporters, Judith Miller, has decided to
accept a jail sentence rather than testify before a grand jury about one of her
confidential sources. Ms. Miller has taken a path that will be lonely and
painful for her and her family and friends. We wish she did not have to choose
it, but we are certain she did the right thing.
She is surrendering her liberty in defense of a
greater liberty, granted to a free press by the founding fathers so journalists
can work on behalf of the public without fear of regulation or retaliation from
any branch of government.
The Press and the Law
Some people - including, sadly, some of our colleagues
in the news media - have mistakenly assumed that a reporter and a news
organization place themselves above the law by rejecting a court order to
testify. Nothing could be further from the truth. When another Times reporter,
M. A. Farber, went to jail in 1978 rather than release his confidential notes,
he declared, "I have no such right and I seek none."
By accepting her sentence, Ms. Miller bowed to the
authority of the court. But she acted in the great tradition of civil
disobedience that began with this nation's founding, which holds that the
common good is best served in some instances by private citizens who are willing
to defy a legal, but unjust or unwise, order.
This tradition stretches from the Boston Tea Party to
the Underground Railroad, to the Americans who defied the McCarthy inquisitions
and to the civil rights movement. It has called forth ordinary citizens, like
Rosa Parks; government officials, like Daniel Ellsberg and Mark Felt; and
statesmen, like Martin Luther King. Frequently, it falls to news organizations
to uphold this tradition. As Justice William O. Douglas wrote in 1972,
"The press has a preferred position in our constitutional scheme, not to
enable it to make money, not to set newsmen apart as a favored class, but to
bring to fulfillment the public's right to know."
Critics point out that even presidents must bow to the
Supreme Court. But presidents are agents of the government, sworn to enforce
the law. Journalists are private citizens, and Ms. Miller's actions are
faithful to the Constitution. She is defending the right of Americans to get
vital information from news organizations that need not fear government
retaliation - an imperative defended by the 49 states that recognize a
reporter's right to protect sources.
A second reporter facing a possible jail term, Matthew
Cooper of Time magazine, agreed yesterday to testify before the grand jury. Last
week, Time decided, over Mr. Cooper's protests, to release documents demanded
by the judge that revealed his confidential sources. We were deeply
disappointed by that decision.
We do not see how a newspaper, magazine or television
station can support a reporter's decision to protect confidential sources even
if the potential price is lost liberty, and then hand over the notes or
documents that make the reporter's sacrifice meaningless. The point of this
struggle is to make sure that people with critical information can feel
confident that if they speak to a reporter on the condition of anonymity, their
identities will be protected. No journalist's promise will be worth much if the
employer that stands behind him or her is prepared to undercut such a vow of
secrecy.
Protecting a Reporter's Sources
Most readers understand a reporter's need to guarantee
confidentiality to a source. Before he went to jail, Mr. Farber told the court
that if he gave up documents that revealed the names of the people he had promised
anonymity, "I will have given notice that the nation's premier newspaper
is no longer available to those men and women who would seek it out - or who
would respond to it - to talk freely and without fear."
While The Times has gone to great lengths lately to
make sure that the use of anonymous sources is limited, there is no way to
eliminate them. The most important articles tend to be the ones that upset
people in high places, and many could not be reported if those who risked their
jobs or even their liberty to talk to reporters knew that they might be
identified the next day. In the larger sense, revealing government wrongdoing
advances the rule of law, especially at a time of increased government secrecy.
It is for these reasons that most states have shield
laws that protect reporters' rights to conceal their sources. Those laws need
to be reviewed and strengthened, even as members of Congress continue to work
to pass a federal shield law. But at this moment, there is no statute that
protects Judith Miller when she defies a federal trial judge's order to reveal
who told her what about Valerie Plame Wilson's identity as an undercover C.I.A.
operative.
Ms. Miller understands this perfectly, and she accepts
the consequences with full respect for the court. We hope that her sacrifice
will alert the nation to the need to protect the basic tools reporters use in
doing their most critical work.
To be frank, this is far from an ideal case. We would
not have wanted our reporter to give up her liberty over a situation whose
details are so complicated and muddy. But history is very seldom kind enough to
provide the ideal venue for a principled stand. Ms. Miller is going to jail
over an article that she never wrote, yet she has been unwavering in her
determination to protect the people with whom she had spoken on the promise of
confidentiality.
The Plame Story
The case involves an article by the syndicated
columnist Robert Novak, who revealed that Joseph Wilson, a retired career
diplomat, was married to an undercover C.I.A. officer Mr. Novak identified by
using her maiden name, Valerie Plame. Mr. Wilson had been asked by the C.I.A.
to investigate whether Saddam Hussein in Iraq was trying to buy uranium from
Niger that could be used for making nuclear weapons. Mr. Wilson found no
evidence of that, and he later wrote an Op-Ed article for The Times saying he
believed that the Bush administration had misrepresented the facts.
It seemed very possible that someone at the White
House had told Mr. Novak about Ms. Plame to undermine Mr. Wilson's credibility
and send a chilling signal to other officials who might be inclined to speak
out against the administration's Iraq policy. At the time, this page said that
if those were indeed the circumstances, the leak had been "an egregious
abuse of power." We urged the Justice Department to investigate. But we
warned then that the inquiry should not degenerate into an attempt to compel
journalists to reveal their sources.
We mainly had Mr. Novak in mind then, but Mr. Novak
remains both free and mum about what he has or has not told the grand jury
looking into the leak. Like almost everyone, we are baffled by his public
posture. All we know now is that Mr. Novak - who early on expressed the opinion
that no journalists who bowed to court pressure to betray sources could hold up
their heads in Washington - has offered no public support to the colleague who
is going to jail while he remains at liberty.
Ms. Miller did not write an article about Ms. Plame,
but the prosecutor, Patrick Fitzgerald, wants to know whether anyone in
government told her about Mr. Wilson's wife and her secret job. The inquiry has
been conducted with such secrecy that it is hard to know exactly what Mr.
Fitzgerald thinks Ms. Miller can tell him, or what argument he offered to
convince the court that his need to hear her testimony outweighs the First
Amendment.
What we do know is that if Ms. Miller testifies, it
may be immeasurably harder in the future to persuade a frightened government
employee to talk about malfeasance in high places, or a worried worker to
reveal corporate crimes. The shroud of secrecy thrown over this case by the
prosecutor and the judge, an egregious denial of due process, only makes it
more urgent to take a stand.
Mr. Fitzgerald drove that point home chillingly when
he said the authorities "can't have 50,000 journalists" making
decisions about whether to reveal sources' names and that the government had a
right to impose its judgment. But that's not what the founders had in mind in writing
the First Amendment. In 1971, our colleague James Reston cited James Madison's
admonition about a free press in explaining why The Times had first defied the
Nixon administration's demand to stop publishing the Pentagon Papers and then
fought a court's order to cease publication. "Among those principles
deemed sacred in America," Madison wrote, "among those sacred rights
considered as forming the bulwark of their liberty, which the government
contemplates with awful reverence and would approach only with the most
cautious circumspection, there is no one of which the importance is more deeply
impressed on the public mind than the liberty of the press."
Mr. Fitzgerald's attempts to interfere with the rights
of a free press while refusing to disclose his reasons for doing so, when he
can't even say whether a crime has been committed, have exhibited neither
reverence nor cautious circumspection. It would compound the tragedy if his
actions emboldened more prosecutors to trample on a free press.
Our Bottom Line
Responsible journalists recognize that press freedoms
are not absolute and must be exercised responsibly. This newspaper will not,
for example, print the details of American troop movements in advance of a
battle, because publication would endanger lives and national security. But
these limits cannot be dictated by the whim of a branch of government,
especially behind a screen of secrecy.
Indeed, the founders warned against any attempt to
have the government set limits on a free press, under any conditions. "However
desirable those measures might be which might correct without enslaving the
press, they have never yet been devised in America," Madison wrote.
Journalists talk about these issues a great deal, and
they can seem abstract. The test comes when a colleague is being marched off to
jail for doing nothing more than the job our readers expected of her, and of
the rest of us. The Times has been in these fights before, beginning in 1857,
when a journalist named J. W. Simonton wrote an editorial about bribery in
Congress and was held in contempt by the House of Representatives for 19 days
when he refused to reveal his sources. In the end, Mr. Simonton kept faith, and
the corrupt congressmen resigned. All of our battles have not had equally happy
endings. But each time, whether we win or we lose, we remain convinced that the
public wins in the long run and that what is at stake is nothing less than our
society's perpetual bottom line: the citizens control the government in a
democracy.
We stand with Ms. Miller and thank her for taking on
that fight for the rest of us.