Free Judith Miller

I haven't expressed my thoughts on the Plame Game because they are hard to articulate. It is like one of those times when something "feels" wrong put you can't explain it or put your finger on it. Here, at least, is an attempt to explain why I think Judith Miller ought not be in jail:

1. The press is not prohibited from publicizing information that the government has classified as secret. To prohibit this, is to proclaim that the press can not tell the people what the government is up to, and the press would not be free.

2. Thus, if the press is able to "out" a CIA agent through independent means such as its own investigative work, it would be free to do so.

3. Since reporting facts, such as the identity of CIA agents, is not itself a crime, and provided the press did not resort to criminal means to attain information, then it is not the press's fault if someone leaked classified information.

4. Since there are other means to attain the same information, it is nobody's business how the press gets its information. "White House sources revealed that 2+2=4" is the same as "Scientists have discovered that 2+2=4."

5. The only "crime" in a leak is breach of contract. Example: Let's say the New York Times publishes KFC's secret recipe of 11 herbs and spices. This indicates one of two things:

a) Someone in KFC committed a crime by violating his confidentiality agreement, which does extreme damage to KFC.
b) Through trial and error and perhaps recovering isolated pieces of information, NYT investigators eventually managed to duplicate the secret recipe, doing extreme damage to KFC.

If the Times refuses to reveal how it got the recipe, then we wouldn't even know if there was a leak. And remember, revealing the information is itself not a crime.

What is the difference if the Times admits that a secret informant within KFC revealed the recipe? Only, that we'd know that a crime did take place. But what was the crime? It wasn't revealing information, it was breach of contract - a violation of an agreement between KFC and an employee. KFC, and perhaps the state's attorney, know only two things, that somebody in their company is guilty of breach of contract, and that this person revealed information to the New York Times.

Should the Times be compelled to snitch over a breach of contract at another company? If it was my best friend, and he admitted it to me, would I be compelled to come forward? Apparently, I wouldn't if I were the informant's priest, psychiatrist, or spouse. Why are they exempt? Why should everyone else be compelled to snitch?

6. Any organization has the right to keep secrets - the press doesn't have the "right" to know them. Individuals working for an organization have pledged secrecy, and the press can not coerce them into giving away secrets. But neither does the organization have the "right" to compel the press to reveal its source if someone does spill the beans. The newspaper has as much of a right to pledge confidentiality and keep secrets as any other organization.

7. The press wants to disseminate information; other organizations such as the government want to control information. When someone leaks information, that is a testament to the organization's incompetence in controlling information. That may require an in-house investigation to find out who did it, but the press has no responsibility to help.

8. If the government gets to compel the press to reveal the leaker, that means the government enjoys the forced cooperation of the press in controlling its own information.

9. Compelling the press to reveal sources thus becomes a means for the government to control the press. All the government would have to do is make it a crime for any official to reveal any information whatsoever to anyone. The press would be compelled to reveal all of its government sources.

10. Thus, if the President is ordering genocide, or if our country is run by Satan-worshipping pedophiles, it still might not be a crime for the press to report these things, but it would be compelled to reveal its sources. We would have a government of secrecy and cover-ups, and an impotent press.