Two journalists’ conceptions of source privilege

Cover of Novak's autobiography In today’s Irish Times obituary of Robert Novak (pictured left, on the cover of his autobiography), there is an excellent summary of the Judith Miller affair. From the obituary (with added links):

Conservative US columnist revealed identity of CIA officer

… Six years ago, he crowned his long record of controversial disclosures by revealing the name and position of Valerie Plame, a clandestine CIA officer involved with intelligence on weapons of mass destruction. Her husband, Joseph Wilson, a former US diplomat, had enraged the Bush administration by publicly questioning the White House’s misuse of such intelligence to justify its invasion of Iraq.

Publishing Plame’s name broke federal law and there was a ferocious hunt for Novak’s source, which he stoutly refused to name. This witch-hunt eventually brought prison sentences for a New York Times reporter, Judith Miller, and for Lewis Libby, the chief of staff of former US vice-president Dick Cheney.

Under continuing pressure, Novak told all to a federal grand jury, naming the deputy secretary of state, Richard Armitage, and US president George W Bush’s political adviser Karl Rove as his sources. He justified his action on the basis that both officials had already identified themselves. No one else was prosecuted, but it was not Novak’s finest hour. …

There are also excellent obits in the Economist, New York Times (also here), Time, Wall Street Journal and on the BBC website. Thus ends another chapter in a fascinating case study on journalist source privilege: both Miller and Novak published stories with Libby as the main source, but there the similarities end: although Miller declined to name her source until after she had served 85 days in jail and Libby had given her permission to do, Novak did eventually name Libby without going to jail and without his permission. It graphically illustrates the difference between conceiving of the privilege as attaching to the journalist (as Miller did in her assertion of the privilege even after Libby had outed himself and given her permission to name him) and conceiving of it as attaching to the source (as Novak did by claiming that he was no longer bound by it after Libby had outed himself). Despite what the Supreme Court said in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf)) therefore an important distinction which can make a great deal of difference on the facts of any given case, and the sooner the law recognises both species of the privilege, the better.

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