Author: N.Z. Bear

Eugene Volokh addresses a question I have been wondering about: Robert Novak be legally compelled to reveal his source?
Eugene thinks (tentatively) yes, as the First Amendment claim that journalists sometimes make is not always upheld (Hey, I knew that: I saw Absence of Malice. Everything I needed to know about the law I learned from Sally Field…)
But the one factor I did not see in his analysis was the fact that Washington D.C. (which I presume would have jurisdiction, as I believe that is where Novak is based) has a “shield law” designed to protect journalists from having to reveal their sources.
I was able to confirm that the law exists, but unfortunately have not yet been able to find a link to the actual text.
I assume I am missing something fundamental here, but perhaps Prof. Volokh or someone else more legally qualified than I can clarify this point…
Update: Prof Volokh has kindly responded, stating:
The answer is no; the D.C. Code generally applies to proceedings in D.C. courts, and to D.C. prosecutors (plus possibly to civil actions brought under the diversity jurisdiction of federal courts, though I’m not sure how D.C. rules fit there). It would not apply, however, to Justice Department prosecutors — their actions in these matters are governed by the privileges set forth in general federal law, not the law of a particular state or of D.C., even if the prosecutors are physically located within that local jurisdiction.
However, reader Lead Balloons chimes in thusly in the comments:
Volokh commenting on your post stated that the D.C. shield law would only apply to a D.C. prosecution in the D.C. courts. I don’t know anything about the shield law. However, as a former AUSA in D.C., let me make two points: first, USDOJ is the local prosecutor in D.C. Secondly, there is no reason, other than politics, that the United States Attorney for D.C. could not investigate, and if necessary, prosecute, this case in either D.C. or federal courts. (That’s assuming the actions took place in D.C., seemingly a safe bet if the calls to journalists were made by White House officials.)
Curiouser and curiouser, say I! Seems that the question may well be more complicated than I had initially thought…

The final results are confirmed: of Fool’s post Caucasian Club has won the Showcase, and the Blogger Alliance has defeated the Axis of Naughty for the third week running.
Alliance voting statistics were as follows:
Blogger Alliance: 32 of 75 = 42.7 % participation
Axis of Naughty: 9 of 24 = 37.5 % participation
Full Showcase voting results:
King of Fools: Caucasian Club
( 44 links)
Tom’s Nap Room: I hate cruelty to animals
( 21 links)
Simon world: Big Bad Bill
( 9 links)
citizen lehew: Who Ate My Democracy?
( 8 links)
Patriot Paradox: The Death of Holly Patterson: RU-486 Claims Another Victim
( 4 links)
Random Fate: Good advice
( 3 links)
The Populist: Reaganomics at War
( 2 links)
Freedom In Iran: Freedom In Iran
( 2 links)
Economists for Dean: Welcome to Economists for Dean!
( 1 links)

Folks –
Preliminary results are ready for this week, with King of Fool’s post Caucasian Club strongly in the lead, and the Blogger Alliance squeaking ahead of the Axis of Naughty.
I say ‘preliminary’, because, given that there were some concerns last week that votes did not get counted, I’m going to delay the official end of the contest until this evening. So: if you are concerned that your (or your Alliance member’s) vote may have been missed, you have until 5pm PDT to let me know. After that, I’ll do a final count, and announce the official winners. (Note: if you forgot to vote, that doesn’t count).
Thanks all…
-NZB

Kevin Drum our attention to the Washington Post’s scoop this morning that lends further credence to the claim that Bush administration officials deliberately leaked the identity of former U.S. ambassador Joseph C. Wilson’s wife — an undercover CIA officer. From the Post:
At CIA Director George J. Tenet’s request, the Justice Department is looking into an allegation that administration officials leaked the name of an undercover CIA officer to a journalist, government sources said yesterday.
The operative’s identity was published in July after her husband, former U.S. ambassador Joseph C. Wilson IV, publicly challenged President Bush’s claim that Iraq had tried to buy “yellowcake” uranium ore from Africa for possible use in nuclear weapons. Bush later backed away from the claim.
The intentional disclosure of a covert operative’s identity is a violation of federal law.
The officer’s name was disclosed on July 14 in a syndicated column by Robert D. Novak, who said his sources were two senior administration officials.
Yesterday, a senior administration official said that before Novak’s column ran, two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson’s wife. Wilson had just revealed that the CIA had sent him to Niger last year to look into the uranium claim and that he had found no evidence to back up the charge. Wilson’s account touched off a political fracas over Bush’s use of intelligence as he made the case for attacking Iraq.
Atrios is all over the story (natch) and Hesiod is asking where the top conservative bloggers are on the issue (using the Ecosystem as his source, which is nice: but damn, Hesiod, it’s The Truth Laid Bear — it’s not like you haven’t had a good year plus to get that right or anything…) Even the Bad Dude himself is joining the fun.
The facts are still coming out on this case, so I’ll reserve making any sweeping judgments until the full story (or at least, more of it) is known. But there’s no great moral conundrum here: if the facts of the Post story are true, then the administration sources clearly acted unethically, immorally, and illegally. And if their actions can be proven in a court of law, they should go to jail. We’ve got plenty of legal processes to deal with this sort of thing — and it appears that, thus far, those processes are functioning properly (the lead of the Post story is that the Justice Department is investigating the issue, after all).
As for broader conclusions on what this says about the Bush administration — I’ll wait on that. Obviously it isn’t good, but leaping to conclusions like impeachment (Hesiod) is a bit premature in my view. If, however, it can be shown that Bush himself authorized (or even knew of) the leak — then yes, impeaching a president for willfully violating the law is just fine by me. Ditto on a smaller scale for kicking out Karl Rove, if he proves to be responsible (which, to be clear, there is absolutely no evidence of at this time, although the speculation is not an unreasonable one).
But before celebrating the prospect of impeachment all too much, Hesiod should of course consider that it would leave him with President Cheney…
Update:Josh Marshall has some speculative, but excellent, thoughts on the matter…

Slate’s Jacob Weisberg was on the Slate/NPR radio program Day to Day this morning, discussing President Bush’s appearance at the U.N. One particular statement caught me by surprise:
(transcript is, as usual, my own from repeated listening of the RealAudio, the relevant section begins at about 4 minutes in):
Weisberg: We’re taking casualties in Iraq every day; over the last few days, U.S. soldiers have been killed at the rate of two a day. I think there’s a general acknowledgement that the occupation is not going well — perhaps it could be going worse, but it’s not going well and there’s no end in sight.
(italics mine).
There’s only one problem with Weisberg’s flat statement on the casualty rate in Iraq: it just isn’t true.
The most easily accessible source I have found for data on casualties is the impressive website at lunaville.org simply titled Iraqi Coalition Casualty Count. As the site explains in their methodology page, the Department of Defense itself doesn’t make it terribly easy to find day-by-day data on casualties, although they do provide the raw data in the form of press releases and (extremely) high level summaries (PDF). Lunaville appears to be stepping up to the plate to try to provide the information in a searchable database.
That said, back to Weisberg’s statement. We’ll assume that when he stated that “we’re taking casualties in Iraq every day” he included wounded personnel as well as those killed — and by that definition he is almost certainly correct. But when he says “over the last few days, U.S. soldiers have been killed at the rate of two a day”, the facts don’t seem to support him.
Lunaville shows the following counts for U.S. soldiers killed over the past week:
9/22/2003 1
9/21/2003 0
9/20/2003 3
9/19/2003 0
9/18/2003 4
9/17/2003 0
9/16/2003 0
Depending on how you interpret Weisberg’s “last few days”, you get a different number for the average deaths per day. But there is no mathematical way you can make that number come out to even approach 2. If you look at the past three days, you get an average of 1.33; four days gives you 1.0; five days gives the maximum at 1.6, with six days at 1.33 again and the last week’s average being 1.14.
How about the whole month of September? Lunaville shows 21 U.S. soldiers killed in the past 22 days; an average of 0.95 a day. The month of August? 35 U.S. deaths in 31 days — an average of 1.13 a day.
All of these calculations are, of course, completely dependent on the source data. I am assuming Lunaville‘s counts are accurate, as they appear to be quite serious about their task and I’ve seen no evidence to contradict them. But be your own judge; that’s what the hyperlink is for.
But if you do accept the source numbers, there’s no way to avoid concluding that Weisberg’s statement that “over the last few days, U.S. soldiers have been killed at the rate of two a day” is simply wrong. If the question of just how bad things are in Iraq right now wasn’t so critical, I might be inclined to let a statement like this slide. But this issue is critical, and if journalists are going to declare Iraq to be “not going well”, we at least should demand that they get the numbers right.
What’s that you say? Weisberg was simply speaking during a radio interview, and that taking an exact spoken quote and dissecting it like this is a tad unfair? Well, I’m sure Weisberg himself might agree. Or maybe not.
Finally, in taking potshots at Mr. Weisberg, I don’t want to commit the offense of simply reducing these dreadful losses to mere numbers. Yeah, it’s not two a day, but it is still too damned many. And so I encourage you to go here, or here to see the faces of the soldiers who will not be coming home. What was lost with them cannot be replaced for their families and loved ones; and I can only offer my thoughts and sympathies to those that they have left behind.

Slate’s Press Box columnist, Jack Shafer, took a break from beating up on Judith Miller to Matt Miller for a proposal in his new book, The Two Percent Solution. (No relation between the Miller’s, far as I know: what is it with Shafer and that name, anyway?)
Matt Miller, the able and patient host of KCRW’s Left Right and Center (he must be patient, he puts up with Bob Scheer every week), argues in his book for, among other things, newspapers to run a feature he calls ‘Still True Today’. (As I enjoy Miller’s work on KCRW, I must admit with embarassment that I haven’t read his book yet, hence I’m relying on Shafer’s quotations here). Shafer describes Miller’s idea as follows:
Setting aside the wisdom of Miller’s $200 billion proposal [the main thrust of his book; I leave this to another post – NZB], he believes newspapers should raise awareness of America’s unmet health, education, and income needs with a daily feature called “Still True Today.” Bannered across the bottom inch of Page One (just 2 percent of a standard broadsheet!), “Still True Today” would “institutionalize regular attention for things that are important even though there’s not ‘news’ in them,” Miller writes. One day the feature would explain, “42 million Americans are uninsured