I've had a number of readers write in today noting the news that two reporters were threatened with jail time by special prosecutor Patrick Fitzgerald for not revealing what they know about administration officials who may have leaked the name of Valerie Plame.
Most have wanted to know my reaction.
As this story in the Washington Post notes, "Newly released court orders show U.S. District Court Chief Judge Thomas F. Hogan two weeks ago ordered Matt Cooper of Time magazine and Tim Russert of NBC to appear before a grand jury and tell whether they knew that White House sources provided the identity of CIA officer Valerie Plame to the media."
Cooper refused and the judge ordered him sent to jail. He is now out on bond pending an appeal to a higher court. Russert apparently agreed to testify after jail was put on the table.
As you likely know, I've taken a great interest in this case -- both in the Wilson/Plame matter and the underlying issue of the discredited charges about uranium sales from Niger to Iraq.
I have to tell you that I have a lot more respect for Cooper's actions in this matter than Russert's.
I guess it would be possible to argue that given the potentially criminal nature of the leak, that that crime -- and the bad act behind it -- freed the reporter of the obligation to protect his source's confidentiality. I don't think I agree with that in this case. But I could see that argument being made.
Yet, if that were the principle at stake, I don't see why a jail threat should have been necessray to bring it into play. If that's how Russert felt, he could have talked to the grand jury from the beginning. But clearly he didn't.
It seems like he just didn't want to spend any time in jail, which is human, but not honorable.
Cooper, on the other hand, is putting himself on the line, taking a courageous stand in a situation that all journalists know they might one day find themselves but hope they never will.
I know many readers will likely see my position here as contradictory, a hyocrisy, given how much emphasis I have given to getting to the bottom of this matter. Perhaps some will suggest that my own work as a journalist makes me biased, that I'm letting that bias cloud my view of this case, or speaking out of a sort of professional tribal loyalty.
Perhaps they're right.
All I can say is that finding out who revealed Plame's name is not the only interest at stake here. Or, just as we do not knock down every right or procedural norm to get a conviction of a guilty party in a court trial, so too should we not do the same to get to the bottom of this mystery.
I think that the confidences of journalists play a role not unlike that of defense attorneys. They protect the interests of various bad actors. But they are an essential part of a system that, overall, produces good results.
Some time back in Slate, Mike Kinsley, in characteristic fashion, elegantly summarized this argument, only to suggest that it really may not apply here, or at least not in an absolute fashion ...
It is no solution to say, as some do, that it is journalist's job to protect the identity of his or her sources and it is the government's job to expose them. This isn't a game. There is no invisible hand to guarantee that the struggle of competing forces will achieve the correct balance. Journalists ought to be concerned about national security, and government officials ought to be concerned about the First Amendment. When these interests conflict, those involved ought to have an obligation to strike the balance for themselves. Or they should have it.
The purpose of protecting the identity of leakers is to encourage future leaks. Leaks to journalists, and the fear of leaks, can be an important restraint on misbehavior by powerful institutions and people. This serves the public interest. But there is no public interest in leaks that harm national security, or leaks that violate the law, or leaks intended to harm blameless individuals. There is no reason to want more of these kinds of leaks. So, there is no reason to protect the identity of such bad-faith leakers.
I'm not sure I have a good response to this argument, or at least not a crisp one.
The best I can do is to say that I'm not sure that the line between bad-faith and good-faith leaks is necessarily so clear as to make this argument work in practice. I guess I have some confidence that the correct balance between the competing forces Kinsley notes will sometimes have to be found in the tension between the judge's ability to impose jail time and the reporter's ability to endure it.
But I'll mull the matter more and see if my opinion changes.
Having said that, I also agree with the court ruling that says that the 1st Amendment does not grant an absolute shield for journalists seeking to avoid testifying before grand juries -- not just that that is the law but that it should be the law. And that means that journalists must in some cases be willing to go to jail to protect a source, even if the source isn't particularly deserving of protection.
Perhaps this seems like another contradiction. But I don't see it that way. I don't see any conflict between believing that the state has a right to demand answers from a journalist in certain highly restricted cases and also believing that the journalist may have an ethical right or obligation to deny that demand, so long as he or she is willing to accept the consequences. I simply don't see where journalists, as a group, can get off with an absolute protection against getting hauled before grand juries. They're too ramshackle and unregulated a bunch to get the protections the law provides to doctors and psychologists. And even those are not absolute.
This is just one of the perils of the profession, just as doctors arguably have an obligation to risk exposing themselves to certain contagious diseases in order to heal the sick.
Of course, all of this leaves rather a mystery about why Fitzgerald is picking on Cooper and Russert, while not putting the same screws to Robert Novak -- the man who clearly could give the most salient and probative testimony in this case and who, let's be frank, most deserves to be put in this position.
He, after all, is the one who actually chose to report the leak and become the hand-maiden of the bad act.