Anonymous Sources, cont. - Phil's Rambling Rants
Anonymous Sources, cont.|
As the drama of who outed Valerie Plame continues to slowly unfold, New York Times reporter Judith Merrill is spending her second night in jail for refusing to reveal her anonymous source. In the discussion of her case, something came up that I find a new and chilling twist. I first heard it explained in an NPR interview, but I've since heard it confirmed, with less explanation, in other reports.
Judith Merrill is expected to be held (assuming she sticks to her guns) until the term of the investigating grand jury she's supposed to talk to expires, or until the judge determines that she isn't going to talk
. This bizarreness comes about because the official legal justification for her imprisonment is not to punish her, but to coerce
her into talking. When the grand jury's mandate expires, it doesn't matter if she talks or not, so there is no need to coerce her, and if the judge in his wisdom determines it won't do any good, he's supposed to let her go.
I naively believed that our authority to put people in jail was supposed to be limited to punishing people who had been found guilty of crimes they had committed. Our government's authority to coerce us into doing things we don't want to is supposed to rest on defining failure to do what the government wants us to do as a crime, and if we don't, finding us guilty of that crime by due process of law. It is explicitly illegal for the government to put you in jail for something they believe you are going to do -- "prior restraint" -- unless they can show that you've actually committed a crime. Thus, I find it bizarre and frankly rather scary to discover that the courts claim the explicit right to affirmatively force a person to do their bidding, as opposed to finding her guilty of failing to do so after the fact, and the scariness is multiplied by the fact that they can deprive that person of liberty in that forcing with rather less due process of law than would be required to punish her for a crime. And apparently the only reason that the term of detention is limited is a lack of will to circumvent a requirement that comes about by coincidence -- I don't know of any reason why a grand jury has to have a time limit, and certainly nothing prevents another grand jury from demanding the same evidence.
You don't have to be a terrorism suspect to be detained indefinitely without trial or charge. All it takes is to be an ethical journalist with the guts to stand by your promises. Doesn't that make you feel safe, secure, and full of civic pride?
Tags: ethics, news
In the judgment of our legal system (including the Supreme Court, which declined to review the decisions of the lower court), this reporter is guilty of contempt for refusing to testify before the grand jury. She's been charged, she's been tried, her appeals have been denied, and she is now in jail for the duration of the term of the grand jury (about 12 weeks). So she's not being detained indefinitely without trial or charge. You can rest easy.
(If she was a suspect in the case, she could invoke her Fifth Amendment rights and refuse to testify without being in contempt. But that clearly doesn't apply in this case.)
I have not followed the case closely from the beginning. I know the order to have her detained was appealed, with the appeal ultimately rejected by the Supreme Court, but I was not aware that the original order to detain her came from an actual trial with an actual jury finding actual guilt beyond a reasonable doubt. I had the impression that it was just a judge saying "I find you in contempt, off to jail with you". It was quite clear from the reports I did pay attention to that her jail sentence was meant to coerce her to testify, not to punish her for failure to testify, and the judge has the authority to let her go if he decides that she is not coerceable.
In the case of a contempt citation (which this is), it's a ruling of the judge which could be (but was not in this case) overturned by a higher court. I've never heard of a jury trial for a contempt citation, which is not to say that such a thing has never happened...
If there wasn't a jury (unless the defendant had the right to have one and chose not to), it wasn't a trial by the standards we normal people understand. I believe the Constitution says I have the right to a jury trial and the right to due process. It strikes me that in this case, one judge gets to charge, convict, and pass sentence; even with appeals, it doesn't seem like much due process. In fact, I feel sure that it wouldn't stand up if the court considered it a matter of crime and punishment, as opposed to some abstruse part of the inner workings of court business.
Note that they didn't call Bob Novak, who actually wrote an article revealing the information, asking for his source and threatening -him- with jail. Stinking hypocrites.
And I assume that you've got information directly from Patrick Fitzgerald indicating that Novak is not cooperating with the investigation?
Charge hypocrisy, if you want, when the special prosecutor's report comes out and you have accurate data. Before then, you're speculating based on what you choose to believe.
|Date:||July 8th, 2005 03:25 pm (UTC)|| |
Heard on radio on either NPR or Air America or both, Novak was not called to testify by the grand jury. There is not a hint that he is being required to provide information or is testifying to the grand jury under oath. That to me looks like hypocrisy--demanding that someone who didn't even publish anything be tossed in jail, while the person who did first publication apparently gets a complete and utter bye. Also, the background that I seem to recall is that very little of the excrement through the fan over the release of classified information which looked like a piece of vicious vituperation going after someone's wife and putting people she had worked with in jeopary for the husband saying the yellow cake report was bogus, got directed at Novak.
Identities of covert agents are kept secret because it can cause "serious damage" or "exceptionally grave damage" [I don't remember the exact terms anymore that apply to particular classifications] to the US national interest if the identities get revealed. In the old Cold War days, identification of covert agents often resulted in the deaths or disappearance without a trace of their contacts, once the covert agent's identity was revealed, along with the other side realizing what information they thought was secure, actually wasn't secure. (That is, there's stuff that's secret, that the people who classified it, thinks isn't known to people who don't have the "need to know." Then they find out that someone who had access to that information, was a spy or giving information to spies. They then work to change things to minimize the damage--change the codes in use if code information got out, change procedures if procedures got out, and trying to figure out ways to mitigate the other side having gotten detailed knowledge of equipment performance. E.g., if I get the technical details about the actual flight envelope and maximum performance and range and vulnerabiltie of combat aircraft, I can design a better system and procedures to neutralize it. It's got an unrefueled range of 600 kilometers, say? I can use that information in my ground-based air defense systems and briefing fighter pilots practicing to shoot the things down. The computer system at Facility X has to recycle at the turn of day? That's when I run operations that Facility X is watching. There's a hole in the satellite coverage due to sensor characteristics? I'll run operations where and when the hole in the satellite coverage is (that one actually happened.... if you don't know there's a deficiency, you can't exploit it. If you do know, you exploit it. Classifying the measured performance means that the other side has to make a lot more guesses and spend a lot more time and effort trying to figure out how to neutralize something).
One of the things about certain sorts of safes is that they're designed so that break-ins show. That is, finding out that something has been "compromised" is some cases is more important than the actual contents were. Assuming that something is still secret, when it's been leaked, is a much more situation that the information that had been secret, is known to no longer be secret--known leaked information is damaging, but not as damaging as assuming that the information is still a secret and then finding out often in highly unpleasant situations and conditions that the information isn't a secret after all, and the other side was exploiting that as an advantage to destroy your economy, tap your communications lines, divert your cargo vehicles, feed false information to your spies, etc.
Just out of curiosity -- do I know you? How did you find my journal? You are welcome to read and comment in any case.
I don't know if you know me in person or not or vice versa. I found the thread via the "look at what friends of [whomever]" have posted recently" entries list, of someone whom I'm ever face to face acquainted with, or havve been acquainted with in electronic forums with for some amount of time or other--anywhere from weeks to back on the old GEnie Science Fiction Round Tables years ago.
I'm horrified by the things that I've been seeing the US Government doing this decade.
The "Anonymous" posted above I forgot to select LiveJournal user and enter username and password for, I didn't intend to post as anonymous drive-by heckler there.