By Steve Chapman
The editor in chief of Time Inc. made news the other day by offering to do what most of us take for granted: Obey the law.
It’s about time.
Reporter Matthew Cooper has declined to testify in the federal probe of the outing of undercover CIA operative Valerie Plame. But after the Supreme Court spurned his appeal on Monday, his superiors elected to turn over his notes, which apparently will make his refusal irrelevant.
“The same Constitution that protects the freedom of the press requires obedience to the final decisions of the courts,” said editor Norman Pearlstein — an insight that has eluded many of his fellow journalists.
That would include New York Times reporter Judith Miller, who claims the prerogative of deciding for herself what information the grand jury is entitled to hear, and whose publisher backs her up. Like Cooper, she apparently had a conversation with the leaker (or leakers) about Plame. Even though she didn’t write a story, that could make her a witness to a federal crime, since it is illegal for a federal employee to unmask a covert agent.
But Miller feels she has the right and the duty to keep her promise of confidentiality to her source, never mind that her source had no respect for his own secrecy obligations. She says she will go to jail rather than cooperate, and this week, she may get the chance.
Her fortitude would be admirable in a noble cause, which unfortunately this is not. Plame is the wife of former ambassador Joseph Wilson, who infuriated the White House by publicly rejecting claims that Saddam Hussein was trying to acquire nuclear weapons. After he wrote an article criticizing the administration’s evidence, someone leaked the information in an attempt to discredit him.
Columnist Robert Novak obligingly published Plame’s name, which he said he got from “two senior administration officials.” (Novak refuses to say whether he’s testified, but since he hasn’t been threatened with jail, it’s safe to assume he has.) Miller and Cooper have chosen to shield someone who blew an American agent’s cover for political revenge.
This is a terrible mistake for two reasons. In the first place, as the Supreme Court made clear, it is based on a legal privilege that exists only in the fertile imagination of journalists. In the second, it may serve to protect a serious felon from being brought to justice.
Miller insists that her subpoena, by compromising the confidentiality of news sources, threatens the public’s right to know. But there are some things the public has no right to know — including the names of covert agents. If Plame’s exposure had made her a terrorist target, that would be painfully obvious.
The law in question was passed in 1982 after rogue agent Philip Agee outed more than 1,000 CIA operatives, potentially jeopardizing their lives. No one has argued it should be repealed. But if federal employees can leak names to journalists without fear that the reporters may testify against them, the law would have all the value of a Confederate bank note.
It may not be surprising to find a couple of journalists behaving irresponsibly. What is surprising is that the entire press has rallied behind them. A host of news organizations signed a brief siding with Cooper and Miller during their court battle. Editorialists at The New York Times and The Wall Street Journal, who normally can’t agree that shamrocks are green, both condemned special prosecutor Patrick Fitzgerald for thinking the protection of our spies justifies inconveniencing reporters.
But even the states that have shield laws allow prosecutors to subpoena reporters under certain conditions. Federal courts have ruled that even if there were a reporter’s privilege not to testify, it would not be enough to excuse Miller and Cooper, because the information sought is crucial and the prosecutor has exhausted every other means of getting it.
The only protection that might help is an absolute shield, akin to the attorney-client or doctor-patient privilege. But as University of Chicago law professor Geoffrey Stone notes, even those have exceptions. If a client asks his lawyer how to get away with robbing a bank, the conversation is not protected, because the privilege was never meant to facilitate violations of the law.
The sort of privilege sought by the news media, however, would do just that. Reporters who are witnesses to a crime could evade the normal duty of citizens to tell what they know.
Journalists like nothing better than exposing self-seeking behavior by special interests who care nothing for the public good. In this case, they can find it by looking in the mirror.
Steve Chapman writes for Creators Syndicate. Contact him at: