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Journalists in jail: bad news for a democracy
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman
09.25.05

It can be something of a jolt to the democratic sensibilities of most Americans when they learn that a journalist has been arrested for treason, held for months without public charges, denied bail not by a court but by the government accuser, and is destined to be tried in secret.

And even though that injustice unfolds in China, quite distant from us geographically and constitutionally, there are elements of such government action that offer unsettling reminders that from time to time we threaten our journalists with jail, too.

Zhao Yan was charged by Chinese authorities with the capital crime of leaking state secrets after his employer, The New York Times, published an article about the impending resignation of a top government official. Zhao and the Times both assert that Zhao had nothing to do with the article; nevertheless he faces a harsh prison sentence.

Zhao is not alone. The Times reports that 30 other journalists are in jail in China right now on similar charges.

Such a thing couldn’t happen in the United States, at least not in that way.

We have the First Amendment to protect journalists. We have independent courts to safeguard the rights of all Americans. It is not in our nature to charge journalists with treason when they disclose sensitive government information.

We are much more circumspect when we threaten journalists who irritate government officials or confound government procedures. We try to follow the law and we respect the Constitution.

But we still find ways to send journalists to jail.

For example, one way around current law and the First Amendment is to go after journalists’ confidential sources — and then send the journalists to jail if they refuse to disclose those sources to a grand jury investigating a possible crime.

That is why Judith Miller, also a Times employee, has been incarcerated nearly three months in a federal prison, the longest term ever served by a newspaper reporter in the United States. Miller is not in prison for revealing “state secrets”; she did not even write an article. Instead, she was held in contempt of court for refusing to tell a grand jury who in the government she talked to, or, more probably, who talked to her.

She has become collateral damage in a special prosecutor’s investigation into whether administration officials broke the law by leaking the identity of a CIA officer. In fact, it is possible for the prosecutor to end his two-year inquiry with no charges against anyone and only one person having served time: Judith Miller.

She is supposed to get out of prison when the grand jury’s term ends in October, but special counsel Patrick Fitzgerald has the option of increasing the pressure to reveal her source by threatening to extend her incarceration, even though there is a good possibility she has nothing to tell him that he doesn’t already know.

Although Miller is the only reporter jailed in this case, other reporters in the case escaped that fate only by securing release of confidentiality from their sources or otherwise cooperating with Fitzgerald. Several other journalists face the same sort of coercion and possible imprisonment in two separate cases.

There are those who would like to have other tools for punishing journalists or making them an unofficial arm of law enforcement. For instance, members of Congress and others over the years have floated legislative proposals that would punish anyone who disclosed sensitive or classified material to the public or the press. As with the grand jury investigations, such a law would target journalists indirectly by essentially making them co-conspirators with those who leaked sensitive national-security information.

In fact, just such a law was embedded in an intelligence authorization act passed by Congress in 2000 and then vetoed by President Clinton.

The concept still tempts lawmakers.

In a recent speech, Rep. Pete Hoekstra, R-Mich., chairman of the House Permanent Select Committee on Intelligence, called for a comprehensive law providing criminal penalties for the unauthorized disclosure of classified information “regardless of the type of information or the recipient involved.” On Sept. 14, he held the first of a series of hearings on the issue — in secret.

Adding yet another tool for threatening and jailing journalists would be a mistake. It would further tilt democratic procedures away from government accountability and toward official secrecy.

Finally, here is another jolt to our democratic sensibilities. Only two nations in our hemisphere have journalists in jail for the principled practice of their profession: communist Cuba and the United States. Like China, Cuba has many journalists in prison while the U.S. has only one — at the moment.

But as Eduardo Bertoni, a human rights official with the Organization of American States, said recently, “the presence of even one journalist in jail because of what he or she does is always bad news, whether it occurs in a society with a firmly rooted democracy or in one that is still striving to be free.”

Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: pmcmasters@fac.org.


Related

High court won't hear reporters' appeal over subpoenas

Time's Matthew Cooper, New York Times' Judith Miller face up to 18 months in jail for refusing to reveal sources in CIA leak case. 06.27.05

Press advocates mull effect of Miller's jailing
Some fear whistleblowers will be less likely to talk to journalists; others hope they will be reassured by reporter's determination to protect source. 07.07.05

Senate hearing slated on news sourcing
Judiciary Committee wants to look into 'all sides of the issue' regarding confidential sources, shield law. 07.08.05

Miller testifies in CIA leak probe
New York Times reporter is freed after 85 days in jail, says her source has released her from promise of confidentiality. 09.30.05

Miller's decision to testify surprises supporters, journalists
Meanwhile, attorney for New York Times reporter said he had tried a year ago to reach agreement with special prosecutor concerning testimony. 10.03.05

Miller testifies again before grand jury
New York Times reporter appears before panel for second time, also turns over notes from previously undisclosed conversation with vice president's chief of staff. 10.12.05

Details in CIA leak probe raise questions about Cheney aide's actions
Meanwhile, New York Times' Judith Miller writes that she can't recall from whom she got covert CIA officer's name. 10.17.05

Miller's attorney: CIA probe may have silver lining for press
Meanwhile, White House won't comment on report that Dick Cheney's chief of staff may have first heard of Valerie Plame from vice president himself. 10.25.05

Cheney aide indicted in CIA leak probe
Lewis Libby resigns amid charges of obstruction of justice, making false statement, perjury; Karl Rove not indicted, remains under investigation. 10.28.05

Giving up a source or giving up freedom
By Paul K. McMasters Supreme Court’s rejection of two subpoenaed reporters’ petitions is dismaying when jail time is viewed by judges and prosecutors as a way to coerce information. 07.03.05

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