The Specter of Jail

The chances that the Supreme Court would take the Miller/Cooper appeal were always slim, and yet, it still comes as something of a shock that they, in all likelihood, will soon be headed off to jail.

Journalists take all sorts of risks, especially those who go into war zones. But having conversations with senior administration officials--a practice that occurs every three or four minutes in Washington--is hardly seen as the kind of reckless behavior that could land you behind bars. Judith Miller didn't even write a story for the New York Times about the outing of Valerie Plame, while Matt Cooper's piece in Time was about the very subject of whether unnamed Bush officials were trying to punish Plame's husband, Joe Wilson, by passing word of her undercover CIA status.

And, of course, neither Miller nor Cooper outed Valerie Plame. That distinction belonged to Robert Novak, who won't say whether he testified in the case or was even subpoenaed. What's more, the chances that special prosecutor Patrick Fitzgerald will actually find the leakers are slim, given the history of such investigations.

In terms of public opinion, of course, this is a terrible test case for journalists. The Plame leakers are not exactly Mark Felt, and fairly or unfairly, Miller and Cooper are seen by some as protecting high officials who carried out a tawdry act of revenge. Their response is that journalists must keep their word when making a pledge of confidentiality and can't pick and choose according to how sympathetic the sources are. But this remains a tough sell, PR-wise, even though neither of them would be in this situation had Novak not published the leak. And the general public dissatisfaction with journalists using so many unnamed sources, which some major news outlets are now trying to reduce, doesn't help.

It's hard to understand why 49 states (Wyoming is the exception) recognize a reporter's right to protect confidential sources, but not the federal government. Yes, journalists are occasionally jailed or threatened with jail at the state level, but these tend to involve murder cases in which a reporter talked to the suspect or has key evidence. Some members of Congress are pushing for a federal shield law, but I don't think that's at the top of the GOP leadership's list.

Is it really possible that Cooper and Miller will have to spend a year and a half away from their families while the folks who outed Valerie Plame get away with it?

Here are news stories in the LAT, and NYT.

The case is downright Kafkaesque, says Salon's Farhad Manjoo:

"What's most odious about the idea of Miller and Cooper going to jail is that there isn't a clear purpose to it. Perhaps you could make an argument for keeping them behind bars if it would lead the government to the scoundrel who leaked Plame's name. But lawyers who've been watching Fitzgerald's moves in the case suggest that he may already have some idea of who leaked the name, and the fact that he hasn't yet charged someone in the case may indicate that there's not enough evidence to move forward on the prosecution. Instead, what Fitzgerald seems to be after is a much weaker charge of obstruction of justice -- a low-level, catchall accusation that federal prosecutors use all the time when their main investigation runs dry."

Musing's Musings is unsympathetic to Matt & Judy:

"Some have argued that forcing the two to testify would chill investigative journalism, but I'm not seeing it. Miller and Cooper did no investigating in this matter: they were recipients of an illegal leak from a federal official, who violated U.S. law in revealing Plame's identity. Refusing to name their source constitutes, in my admittedly non-professional opinion, an obstruction of justice. And we're not talking about a whistleblowing crusade against shoddy government oversight, or a deliberate coverup of illegal activities like Watergate here. We're talking about someone blowing the cover of a covert CIA operative for petty partisan politicking."

No SC retirement yesterday, on the term's final day of the term, but National Review's Ramesh Ponnuru offers conservatives another reason to oppose Gonzales: