Taking prisoners in the war on journalism
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman

Follow this closely because the logic gets tricky:

Someone in the White House leaked the name of a CIA operative to several journalists, apparently to punish the husband of the covert agent for taking issue with the administration.

All of the journalists declined to participate in the apparent retaliation, with the exception of syndicated columnist Robert Novak, who revealed the name of the agent in a column published on July 14, 2003.

Attorney General John Ashcroft appointed a special counsel to investigate the possible federal crime. The special prosecutor, Patrick J. Fitzgerald, assembled a large staff armed with all the investigative tools of the Justice Department. Under orders from the president to cooperate fully, White House personnel produced telephone records, e-mail logs and other material.

Now, after more than a year of investigating, the special prosecutor, backed by a federal judge, is ready to send someone to jail. But not the two “senior administration sources” cited by columnist Novak. Nor, as far as we know, has the columnist been subpoenaed, questioned or threatened with contempt of court. Instead Fitzgerald has focused his prosecutorial zeal on Time magazine correspondent Matthew Cooper, who wrote about the leak several days after Novak published his column, and New York Times reporter Judith Miller, who didn’t write about the story at all.

Despite their distance from the alleged crime, these two journalists face 18 months in jail for refusing to give up their sources. And the two news organizations they work for face huge fines and are now paying out hefty legal fees to defend themselves and their employees as well as a core principle of independent reporting.

This untoward development in the investigation should come as no surprise. Relations between the White House and the press always have been rocky, no matter who is president. But in the last three years, this White House appears to have declared all-out war on journalism, and it now has entered its take-plenty-of-prisoners stage.

Why should this matter to the rest of us?

Because no government is fully accountable — or successful, for that matter — if all the information about its policies and operations comes only from government officials with a vested interest in retaining power and position. Journalists forced to rely on official sources, government press releases or staged “news” events can relay to the public only a fragment of the news and only shards of its context. To more fully and fairly inform the public, they must be able to protect public employees willing to tell their stories anonymously.

That is not a special privilege for the press but an important protection for the public it serves.

So how can we reconcile the conflict between protecting sources and allowing prosecutors to do their jobs?

Forcing sources to waive their confidentiality is a pernicious idea. If corporations and government agencies told employees they could talk to the press only if they identified themselves, these institutions could become even less accountable.

Voluntary cooperation with prosecutors is a risky proposition for journalists. Ask Time’s Cooper, who agreed to talk with Fitzgerald after a source released him from confidentiality. Fitzgerald used that interview to gain information to issue yet another subpoena.

Sending reporters to jail won’t work. They have gone to jail before and will continue to choose jail over betrayal of one of their most important principles.

Instead, the Justice Department needs to reaffirm strict guidelines that force investigators to exhaust all possible avenues before trying to make journalists agents of the government.

For its part, the news media should work a lot harder and better at reducing their reliance on anonymous sources — and making sure they use them and are not used by them.

Finally and most important, Congress must follow the lead of 31 states and the District of Columbia in enacting a federal shield law for journalists. It also needs to strengthen protections for government whistleblowers.

As for the current mess:

If special prosecutor Fitzgerald won’t abandon his harassment of journalists, he should at least focus on columnist Robert Novak. That would give Novak both the incentive and the cover to cooperate. Further, his obligation to his sources is greatly attenuated by the fact that they 1) possibly committed a crime, and 2) used him as an accessory. Finally, he could prevent fellow journalists from serving time for protecting sources who used him to do their dirt.

The uncomfortable truth is that the sources of such leaks are rarely found. Even if they are found in this case, the possibility that they would be indicted, let alone convicted under the Agent’s Identity Act, is remote. As one of the nation’s foremost press attorneys, Bruce Sanford, points out, no one has ever been indicted under this narrowly drawn law in its 22 years of existence.

But if ever a leak needed to be plugged, this one is it. Those two administration officials exposed an undercover operative. They punished a critic. They silenced whistleblowers. They shredded the reporters’ privilege. They cost news organizations hugely.

And they have put good journalists, guilty only of doing their jobs, in the shadow of the prison gate.