In the Plame Case, The Press Goes Too Far
The news media have sided strongly with reporters Judith
Miller and Matthew Cooper, who are threatened with jail
unless they disclose their sources in the Valerie Plame
case. Right now, that decision is starting to look like
Custer's Last Stand. It's a battle the press can't win and
doesn't deserve to win.
The investigation stems from a column written by Robert
Novak in which he blew the cover of CIA operative Valerie
Plame. She is the wife of a former ambassador who had been
critical of the U.S. case for invading Iraq, and Novak said
he had gotten her name from "two senior administration officials."
Cooper wrote an item stating that "some government officials"
had provided the same information to Time magazine. Miller,
a reporter for The New York Times, spoke with a leaker as
well but didn't write a story.
Journalists routinely get information from confidential
sources without the fear of being dragged away in handcuffs.
But in this case, Miller and Cooper apparently were witnesses
to a serious crime that might have endangered Plame and
her associates. So special prosecutor Patrick Fitzgerald
wants to talk to them.
Under federal law, it's a felony for a government official
to disclose the names of covert agents. That law was passed
in 1975 after a former CIA officer, Philip Agee, published
a book unmasking hundreds of his onetime colleagues -- and
after an undercover operative was assassinated in Athens.
Novak, the reporter who actually printed Plame's name,
refuses to say whether he has been subpoenaed. But since
he received the leak and is not being threatened with prison,
it's reasonable to assume he has testified. Miller and Cooper,
however, say they have an obligation and a right to protect
In court, though, that argument has stood up about as
well as a glass house in a rock slide. Last week, a federal
appeals court ruled that they must testify or face jail
for contempt. Neither the First Amendment nor any other
legal protection, the court said, excuses them from the
obligation of all citizens to provide evidence they have
of criminal wrongdoing.
This comes as no surprise. In 1972, the Supreme Court rejected
the idea that journalists have special privileges in criminal
investigations. "We cannot seriously entertain the notion
that the First Amendment protects a newsman's agreement
to conceal the criminal conduct of his source," said the
Journalists, however, warn that if prosecutors have a
blank check to force reporters to testify about confidential
sources, a lot of vital material will never find its way
into the public domain. As it happens, they have a point.
Many valuable stories would vanish if leaks were routinely
prosecuted and reporters were forced to burn their sources.
The only value of this showdown is that it may induce Congress
to pass a reporter's shield law to protect the flow of such
But even a shield law ought to balance the press's ability
to perform its job against the legitimate needs of law enforcement,
as most state laws try to do. They don't give reporters
complete immunity against testifying, but allow prosecutors
and courts to impose on them only when there's no alternative.
A federal shield law would dispel the fear among journalists
that they'll be the favorite target of overzealous prosecutors.
These laws typically require that the information sought
has to be important to an investigation, and that every
other means of getting it has been exhausted. The prosecutor
often also has to show that the leak didn't serve the public
interest -- which in the case of an important revelation
(such as the Pentagon Papers), it would.
With these safeguards, subpoenas would rarely be used.
A sound federal law would protect reporters in the overwhelming
majority of leaks.
But it wouldn't protect reporters from testifying in cases
like this, and it shouldn't. Two federal courts have already
ruled that the information here is critical and that there
is no other way to get it. On top of that, the publication
of Plame's name served no greater good.
We have a federal law against uncovering CIA operatives
for a very good reason. It would be a dead letter, though,
if a government official could violate it with impunity
by giving the information to a journalist.
The press is right in saying an important principle is
at stake: its ability to get information that the public
needs to know. But in this case, that principle should yield
to the need to protect agents who are serving their country.
Journalists might remember that sometimes, a vice is merely
a virtue that is taken too far.
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