Steve Chapman: CNJ columnist
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 in1975 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 their sources.
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 justices.
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 information.
But even a shield law ought to balance the press’ 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 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.
Steve Chapman writes for Creators Syndicate. Contact him at: