Friday, July 15, 2005

Shabbos: Detached from the Ground

Judith Miller
Many years ago, I was taking a Talmud class taught by Arthur Kurzweil at the National Havurah Summer Institute, wherein he taught that when a passage of Talmud is about an ox, if you think that the passage is really about an ox, then you're an ox. I was reminded of this lesson the other day as the veil lifted and I realized that the ox (Shabbos) was much more than an ox, and that the key to building a relationship with this difficult text is to look for the modern day situations to which the text might be applied. It was the transgressions of Karl Rove that opened this text for me, and that continues to open the text for me today.

Today's daf includes the case of someone who intended to lift something that was detached from the ground, only to discover that it was in fact attached to the ground and that by lifting it, he cut something that was attached; and it also includes the case of someone who intended to cut something that was not attached to the ground who discovered that it was attached to the ground. In the former case, he is not liable for an offering; in the latter case, he is. The contemporary question that I want to measure against this template is whether the waivers of confidentiality signed by White House senior staff are attached to the ground.

Every member of the White House staff signs an agreement that they will waive confidentiality when conversing with reporters. The waiver is a fence around a pattern of behavior designed to inhibit government officials from releasing unauthorized leaks. (And in the current administration, it is the rare leak that is not authorized.) Reporters protect the confidentiality of their sources because of an unspoken understanding that it is in the public interest to provide background information about government deliberations to the electorate and that it is in the administration's interest to be able to assess the public's tolerance for innovation (or recalcitrance) without attributing tentative musings to an identifiable official.

It seems to me that as long as the reporter's source is leaking information with the intent to inform the electorate of the parameters of an ongoing debate, the waiver is detached from the ground: i.e., the leaker deserves the reporter's protection rather than to be held liable against the waiver and (for example) Judith Miller should defy even the Supreme Court to protect the confidentiality of a source. HOWEVER, if the source's information is designed to destroy another's reputation or to put another person at risk, violating the spirit of the law (and perhaps even the letter of the law as well), then the waiver is attached to the ground and the reporter has no obligation to protect the source.

The facts as they have been reported suggest that Karl Rove's confidentiality agreement is attached to the ground. As a senior government official who, by his own admission at the very least responded to a reporter's hearsay about the identity of a CIA agent "I heard that, too," he committed a serious transgression. Whether or not Rove knew that the agent in question was a covert agent, he had an obligation to remain silent and refuse to corroborate the story until he determined whether the information was classified. He was under no obligation to confirm or deny the report and his confirmation was most certainly an unlawful act, if perhaps an inadvertent one. But whether inadvertent or deliberate, the underlying intent was to punish a political adversary, and the intent alone rooted the waiver to the ground.


Anonymous Reed Chopper said...

One of the weirdnesses of Shabbat is that it depends on mindstate: The Rabbis think the Torah forbids only intentional work. The definition of "intentional" is also weird. So, for example, you can drag a heavy piece of furniture across your (dirt) floor, even though you might plough a furrow in it, or walk across a field on shabbat even though you might uproot grass or crush sticks in the process, and not worry about it, because it was "not your intention" to make a furrow or harvest grass etc. You just intended to get from here to there.

With the instant case, it seems obvious that if Rove did it, it was because he intended to punish a guy who wouldn't be a team player by outing his wife.

7:06 PM  
Blogger NeilLitt said...

Yes. Rove’s motivation, if he did it, is easy to parse. Moreover, wouldn’t we judge him as having that intent in any event, since he should have been sensitive to the appearance of the act and refrained on that basis alone?

But what of Judith Miller? If the waiver is not attached to the ground, is she likewise obliged to act as if it were for the sake of appearances?

7:10 PM  
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1:01 PM  

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