ABC News and the anthrax story

In the years since 2001, I had largely forgotten what it felt like to live under the sustained fear of unimaginable terrorism hovering over our collective conscience. But it all came rushing back in the wake of suicide death of Bruce Ivins, the FBI's lead suspect in the anthrax attacks of October 2001. 

Salon's Glenn Greenwald has two compelling pieces (here and here) that call into question ABC News' role in perpetuating the Islamic extremist, Saddam Hussein, Iraqi biological weapons role in perpetuating that fear and the warmongering against Iraq that resulted. There are many serious questions to be asked of ABC News, namely who were its unnamed sources. 

Jay Rosen and Dan Gillmor have posted three questions for ABC News and I'll add my voice to the chorus of those seeking accountability in the reporting process. 

Three Vital Questions for ABC News About its Anthrax Reporting in 2001

1. Sources who are granted confidentiality give up their rights when they lie or mislead the reporter. Were you lied to or misled by your sources when you reported several times in 2001 that anthrax found in domestic attacks came from Iraq or showed signs of Iraqi involvement?

2. It now appears that the attacks were of domestic origin and the anthrax came from within U.S. government facilities. This leads us to ask you: who were the “four well-placed and separate sources” who falsely told ABC News that tests conducted at Fort Detrick showed bentonite in the anthrax sent to Sen. Tom Daschle, causing ABC News to connect the attacks to Iraq in multiple reports over a five day period in October, 2001?

3. A substantially false story that helps make the case for war by raising fears about enemies abroad attacking the United States is released into public debate because of faulty reporting by ABC News. How that happened and who was responsible is itself a major story of public interest. What is ABC News doing to re-report these events, to figure out what went wrong and to correct the record for the American people who were misled?

Greenwald's columns also illustrate other questionable actions, such as the tip Washington Post columnist Richard Cohen received about taking Cipro to ward off deadly effects of anthrax. He accepted privileged information and used it for his personal benefit. 

Interestingly, Greenwald's column also sheds a bit of insight into the federal shield law debate. Readers of CI know that I am opposed to legislating reporter's privilege because I believe the First Amendment applies to everyone. The press should not receive a special privilege. As it's written the Free Flow of Information Act does more to protect journalism as a business (in other words the large media organizations) than it does to protect individual journalists. And there are enough exclusions and exceptions to render its protection meaningless.

Good journalism, particularly investigative journalism, is hard work and any notion that the government is helping to make that job "easier" is abhorrent to me as a journalist. Greenwald writes:

Source confidentiality is premised on a model of journalism where the media is adversarial to the Government, and safeguarding the anonymity of sources is the only way to find out what the Government is doing. But these days, so frequently, the media serves as an arm of the Government -- the Government uses the establishment media to disseminate propaganda and outright lies to the public (Jessica Lynch, Pat Tillman, Saddam's aluminum tubes) or even uses leaks to the media to commit crimes (as it did in the Plame case). When the journalists who are used to spread these lies or commit these crimes then conceal who it is who has done such things, they are complicit in the Government wrongdoing, key enablers of it.

By endorsing the sanctity of that Government-media relationship through shield laws and the like (which I've always supported in the past), it's actually -- perversely -- bestowing the Government with yet another tool to shield its misconduct from the public.

(Bold is mine.)

An argument against the Federal Shield Law

If it ain't broke, don't fix it. Now there's some practical advice. It may seem crazy, but that's the sentiment from an unexpected ally in the battle against a Federal Shield Law. Patrick Fitzgerald—yes, he of the same of U.S. District Attorney's office who paraded scores of veteran journalists on the witness stand in the Scooter Libby trial—has an op-ed in the Washington Post about the unintended perils of such legislation. (H/T to Jill for the link.)

His basic premise is that we need to question first whether or not the system of conducting federal investigations, covering and protecting whistleblowers, reporting on such investigations and fighting subpoenas is in need of fixing. His belief? As flawed as the system may appear, it actually works.

A threshold question lawmakers should ask is whether reporters will obey the law if it is enacted. They should ask because the Reporters Committee for Freedom of the Press calls for a shield law while urging journalists to defy the law when a court upholds a subpoena for source information.

He cites a number of impediments created by the bill, including the handcuffing of national security investigations, the delay (measured in years) of such investigations, but most important, he cites the perils of defining journalism. Ding! Ding! Ding! Will someone please wake up and drink of this brew! It would be swell if some of my fellow journalists would start singing this tune! At the very least, he says, the bill defines journalism so broadly that is also includes criminal organizations who disseminate information. So while it may unintentionally penalize those who function as legitimate independent journalists, it may also reward a slew of people on the other side of the law. The Washington Post editorial board calls this extension of coverage "far-fetched," but seriously...do we really want to test that?

The bill does not even purport to exclude domestic terrorists, gangs or pedophiles. No senator or legitimate journalist wants to extend protection to terrorists or other criminals, but such is the vice of a law defining journalism.

Can I get an Amen?!

Because sometimes we need to be reminded

Three years ago, on the third anniversary of the Sept. 11 attacks, Bill Moyers gave a rousing speech to journalists gathered in New York City. It was part scolding, part revival and part call to arms. Here are a few excerpts I wanted to share today:

[Edward] Wasserman acknowledges, as I do, that there is some world-class journalism being done all over the country today, but he went on to speak of "a palpable sense of decline, of rot, of a loss of spine, determination, gutlessness" that pervades our craft. Journalism and the news business, he concludes, aren't playing well together. Media owners have businesses to run, and "these media-owning corporations have enormous interests of their own that impinge on an ever-widening swath of public policy" -hugely important things, ranging from campaign finance reform (who ends up with those millions of dollars spent on advertising?) to broadcast deregulation and antitrust policy, to virtually everything related to the Internet, intellectual property, globalization and free trade, even to minimum wage, affirmative action, and environmental policy. "This doesn't mean media shill mindlessly for their owners, any more than their reporters are stealth operatives for pet causes," but it does mean that in this era when its broader and broader economic entanglements make media more dependent on state largesse, "the news business finds itself at war with journalism."

Methinks we need a reminder of this reality, particularly as the proposed Federal Shield Law moves forward and the language of who is and who is not covered remains too narrowly defined (one colleague this week suggested the test should be whether or not Tom Paine would be covered). Or when we're more concerned with image over substance, branding over values, bottom line over front page. When we're sufficiently blinded by our own comfort and self-righteousness that we actually believe that citizen journalists are to blame for the public perception of big media instead of recognizing its our own failures that are the cause of public distrust. (Who was it this week who said the worst thing to happen to journalism was the mortgage?)

If I ever doubted that my colleagues in newsrooms felt threatened by all this change, the events of the past few weeks have certainly plopped that reality right in my lap. Those outside of newsrooms don't share the same sense of foreboding about the news industry as those inside newsrooms. Spend a little time outside of newsrooms and you see opportunities for good journalism opening up all around. But you have to break out of your preconceived notion of where journalism happens.

[Dan Gillmor] … argues persuasively that Big Media is losing its monopoly on the news, thanks to the Internet - that "citizen journalists" of all stripes, in their independent, unfiltered reports, are transforming the news from a lecture to a conversation. He's on to something. In one sense we are discovering all over again the feisty spirit of our earliest days as a nation when the republic and a free press were growing up together. It took no great amount of capital and credit-just a few hundred dollars-to start a paper then. There were well over a thousand of them by 1840. They were passionate and pugnacious and often deeply prejudiced; some spoke for Indian-haters, immigrant-bashers, bigots, jingoists, and land-grabbers. But some called to the better angels of our nature-Tom Paine, for one, the penniless immigrant from England, who, in 1776, just before joining Washington's army, published the hard-hitting pamphlet, Common Sense, making its uncompromising case for American independence. It became our first best seller because Paine was possessed of an unwavering determination to reach ordinary people-to "make those that can scarcely read understand" and "to put into language as plain as the alphabet" the idea that they mattered and could stand up for their rights.

Maybe we're just waiting for someone to give us permission, maybe we're just waiting for the timing to be better, maybe we're just hoping that if we just stay quiet things will improve. And maybe the world is just waiting for us to finally stand up for our rights, no matter what the context.

I am reminded of the answer the veteran journalist Richard Reeves gave when asked by a college student to define "real news." "Real news," he said,"is the news you and I need to keep our freedoms."

Amen, Brother Moyers, Amen.

The impact testifying has on journalism

John Dickerson is in the courtroom covering the trial for Slate when suddenly his name is mentioned from the witness in the box (Ari Fleischer) and his visage projected across the big screen in the courtroom.

His name is on the potential witness list. What does he do now? Should he recuse himself from covering the trial? His name is mentioned in connection to his work with Time magazine. Does it matter that he's at a different news organization now?

While bloggers, journalists and news junkies ponder some of these big-picture questions, the public seems to care little for the big and little aspects of the Scooter Libby trial. Here in Cleveland, the trial hasn't warranted coverage before A4 and today's AP story about former White House Press Secretary Ari Fleischer's testimony yesterday trickled down the gutter. Though I'm certain Vice President Dick Cheney's testimony would warrant front-page coverage.

Regardless of how it's playing in the heartland, this is a huge story in Washington where the compulsion to know something before anyone else drives all else. Outside the Beltway it seems to have less significance.

"You would have to talk to 30 people to find one who knows who Scooter Libby is," says Lincoln D. Bandlow, an media law attorney with Fox Spillane Shaeffer in Los Angeles and a visiting professor at USC's Annenberg School of Journalism. (In LA yesterday, the top story was the Screen Actor's Guild Awards.) "If there hadn’t been a shift in Congress in November, I think the Democrats would be trying to get more weight out of the story. As it is, the Bush Administration has been sufficiently spanked by voters," he said.

Former New York Times reporter Judith Miller testified today, the first of the many reporters potentially being called. While journalists have testified at trials before, Thomas McPhail, professor of media studies at University of Missouri - St. Louis makes the distinction that such testimony has not occurred in a high-profile federal case in which the sitting vice president is a witness.

How does this impact the credibility of journalists and the organizations for which they work?

Miller's credibility as a journalist has already been skewered. "She is seen as a stenographer for the White House," says McPhail. "She was doing Libby’s bidding in terms of covering the run-up to the war in Iraq. She was making the White House case (for weapons of mass destruction) without telling readers that she got all that information from White House. She mislead the public." The implications for such faulty reporting are also huge for her paper. "The New York Times is an agenda setter," he said. What it covers has ripple affect on other news organizations since her faulty reporting was picked up by papers across the country.

Miller's testimony, which doesn't seem to draw as much fervor considering she is the only reporter who spent time in jail (85 days) protecting the identity of Libby, is overshadowed by the upcoming testimony of Tim Russert of "Meet the Press." Libby contends that it was Russert who told him of Plame's identity. Russert denies this.

McPhail explains: "Russert is the gold standard of television news and political commentary. When he is on the witness stand and under cross examination, he will divulge how close he was to various key White House people. We've heard how the vice president was writing media notes; God forbid Russert was actually using them."

There's also a great deal of concern in the journalism industry about how this trial will impact the reporter/source relationship, particularly for the Washington Press Corps. Attorney General Alberto Gonzalez and his predecessor John Ashcroft have repeatedly shown they are ready to throw journalists into jail if they don't get the information they want, and they do so with little regard for the First Amendment.

While some trumpet the merits of a Federal Shield Law, it's doubtful that such a law would help in this case. Bandlow says it's difficult terrain for applying reporters privilege because it's a battle between the First Amendment and the Sixth Amendment (specifically to compel witnesses to testify on his or her behalf).

"If experience is any judge, media will always aggressively fight back on revealing source issues," says Bandlow. "But it will be difficult to win because this paradigm situation is when reporters privilege is undermined. The First and Sixth amendment issues conflict. This is different then when a prosecutor is asking for information to build a case. A defendant says, 'If I don’t get this information, I’m going to jail.'Which takes precedence?"

Bandlow doesn't believe a Federal Shield Law would help much because it's not enough to trump a constitutional amendment right. "The shield law’s applicability would be doubtful under the case of criminal defendant's right to defend himself," he said.

If we go back to the beginnings of this incident, we find journalists who were calling vociferously for an investigation into who leaked the identity of Valerie Plame to syndicated columnist Robert Novak (His original column is no longer available. This is Slate's Jack Shafer's take.)

"Members of the media did not think all the way through this issue," says Bandlow. "The media attitude was, 'We want to get to bottom of who leaked this in order destroy the reputation of an administration critic. But if that means revealing confidential sources, we’re not willing to get to bottom of it.' "

The crime itself was only evidenced by conversations with reporters. The only way to get to the bottom of it was to go to the reporters, says Bandlow.

"Media's big pitch always is and should be the public has a right to know. At the same time, they turn around and say, 'I’m not gonna tell you about this.' It looks suspect because they are talking out of both sides of their mouth," he says.

McPhail sees several things coming out of this trial as a result of journalists' testimony. "I tend to think that it’s going to expose some of the journalists who have an all-too-cozy relationship with their sources," he says, calling into question the claim of objectivity and neutrality paramount to western journalism.

But he says the case could ultimately help journalism because it has exposed and provided a case study on how preoccupied the White House was—and is—with media coverage. That the vice president spends his days trying to come up with talking points to counter what's being reported seems a bit paranoid.

"This testimony gives us evidence that the media is important to this administration and that although (President) Bush claims not to read the news, that (Karl) Rove and (Dick) Cheney do almost to the exclusion of other issues they should be dealing with," says McPhail.

Bipartisan letter asks AG to drop subpoenas in BALCO case

From the San Francisco Chronicle:

Washington -- The new Democratic chairman of the House Judiciary Committee Thursday urged the Justice Department to withdraw its subpoenas for two San Francisco Chronicle reporters, which seek to force them to name their confidential sources for federal grand jury testimony in which top athletes admitted illegal steroid use.

House Judiciary Chairman John Conyers of Michigan and Rep. Tom Davis, R-Va., the top Republican on the House Oversight and Government Reform Committee, wrote Attorney General Alberto Gonzales criticizing the agency's efforts to jail Chronicle reporters Lance Williams and Mark Fainaru-Wada for refusing to comply with the subpoenas.

"The subpoenas issued to those reporters and their newspaper seeking confidential source information are troubling both on the specific facts of their case and because of the great damage they could cause to our nation's press and the First Amendment," the lawmakers wrote.

Could federal law water down state shield laws?

San Francisco Chronicle is reporting the following:

Twenty four states, the Commonwealth of Puerto Rico, legal scholars and a slew of news organizations have filed court briefs in support of two Chronicle reporters facing jail for refusing to divulge who leaked to them transcripts of grand jury testimony in the investigation of steroids supplied to Major League Baseball players.

New York Attorney General Elliot Spitzer filed the "friend of the court" brief Thursday at the 9th U.S. Circuit Court of Appeals. It was also signed by his counterparts from the other states, including California Attorney General Bill Lockyer.

They argued that state laws protecting reporters in most instances from revealing their confidential sources could be rendered "meaningless" by a lesser federal standard. Before a federal court could require reporters to give up their sources, the states contend, it must show that "the public interest in disclosure outweighs the public interest in confidentiality.''

(Bold is mine)