In the Plame Case, Losers All Around
I want to get really exercised about what the government is doing to a pair of fellow journalists -- Judith Miller of the New York Times and Matthew Cooper of Time magazine. I do hope they can stay out of jail.
But the more I look at it, the more it looks like a fight with nothing much in it for anyone, including the American public.
The bare outline of the case is pretty clear: In his syndicated column, Robert D. Novak "outed" Valerie Plame as an undercover agent of the CIA. Deliberate disclosure of an agent's identity by certain federal officials is a federal offense punishable by up to 10 years in prison, so, not unreasonably, authorities wanted to know who leaked the information on Plame.
But no one's talking about threatening Novak with jail to make him talk. No, they've subpoenaed Miller, who never wrote about the case, and Cooper, who simply reported on the leak. No matter; U.S. Attorney Patrick Fitzgerald apparently has information that the two journalists talked to someone who offered to leak to them. Fitzgerald wants to know who that someone was.
Now, I grant that identifying a CIA agent is a serious offense, and it seems reasonable that government prosecutors would want to know who did it. But surely they know already. Novak isn't talking about it, but it is inconceivable to me that they haven't talked to him and learned who tipped him; otherwise he'd be the one on the hot seat.
In other words, there doesn't seem to be much in this fight for the prosecutor.
But what's in it for Miller and Cooper? I am sympathetic to their claim that they have a right -- under the First Amendment and under established practice -- to protect their confidential sources. The problem is, every court that has heard the claim has rejected it. The latest setback came when the U.S. Court of Appeals in Washington refused to overturn the ruling of a three-judge panel of that court. The U.S. Supreme Court is the journalists' last hope.
The appeals court didn't explain the reasoning behind its decision, but Judge David Tatel, a member of the three-judge panel, wrote a concurring opinion in which he said the case presented no issue of such "exceptional importance" as to warrant a review by the full court.
Moreover, he wrote, the appellate court was barred from considering whether the First Amendment protects reporters from testifying because of similarities between this case and a 1972 case in which the Supreme Court said reporters have no such privilege.
So why don't Cooper and Miller simply shrug and say to their sources: We tried. Actually, journalists have gone before grand juries in a variety of cases without shaking the foundations of liberty or of journalism.
What makes this case so hard to kiss off that way is not the facts but the general circumstances. To start with, it is widely believed that the original leak was a way of punishing Plame's husband, Joseph Wilson, a former ambassador later involved in the John Kerry campaign, for challenging President Bush's claim that Saddam Hussein had imported nuclear weapons materials from Niger. That's dangerously nasty stuff.
More important, the case arises during a period when support for the First Amendment seems to be eroding -- partly because of the Sept. 11 attacks on the United States and partly because some conservatives in the administration seem to think the civil liberties folks have been too successful.
One way out would be for Congress to enact specific protections for journalistic confidentiality, and, in fact, several attempts are being developed. But their enactment would open the door for all manner of occasional bloggers and ether-pamphleteers to claim protection for presumably less reliable sources -- or force either the courts or Congress to decide who is a journalist. And who isn't.
It looks like we've got a grand heavyweight prizefight -- with no prize worth winning.