Monday, September 27, 2004

A Leak Probe Gone Awry

The New York Times
September 27, 2004
A Leak Probe Gone Awry

When the Justice Department opened an investigation a year ago into the question of how Robert Novak obtained the name of a covert Central Intelligence Agency operative for publication in his syndicated column, we expressed two basic concerns. The first was the need for an independent inquiry led by someone without Attorney General John Ashcroft's ultra-close ties to the White House. That was addressed belatedly with the naming of a special prosecutor, Patrick Fitzgerald, to pursue the accusations that unnamed Bush administration officials illegally leaked the woman's undercover role in an effort to stifle criticism of Iraq policy by her husband, former ambassador Joseph Wilson IV.

Unfortunately, our second, overriding fear has become a reality. The focus of the leak inquiry has lately shifted from the Bush White House, where it properly belongs, to an attempt to compel journalists to testify and reveal their sources. In an ominous development for freedom of the press and government accountability that hits particularly close to home, a federal judge in Washington has ordered a reporter for The New York Times, Judith Miller, to testify before a grand jury investigating the disclosure of the covert operative's identity and to describe any conversations she had with "a specified executive branch official."

The subpoena was upheld even though neither Ms. Miller nor this newspaper had any involvement in the matter at hand - the public naming of an undercover agent. Making matters worse, the newly released decision by Judge Thomas Hogan takes the absolutist position that there is no protection whatsoever for journalists who are called to appear before grand juries.

This chilling rejection of both First Amendment principles and evolving common law notions of a privilege protecting a reporter's confidential sources cries out for rejection on appeal, as does the undue secrecy surrounding the special prosecutor's filings in the case.

Mr. Novak has refused to say whether he received a subpoena. But other journalists have acknowledged getting subpoenas and some have testified about their contacts with I. Lewis Libby, Vice President Dick Cheney's chief of staff. They say they did so based on his consent, but consent granted by government employees under a threat of dismissal hardly seems voluntary. Once again, none of these journalists were involved in the central issue: the initial public identification of Mr. Wilson's wife.

If an official at the White House intentionally triggered publication of the name of a C.I.A. operative to undermine Mr. Wilson's credibility and silence criticism of Iraq policy, it was a serious abuse of power. The legacy of the investigation should not be a perverse legal precedent that makes it easy for prosecutors to undo a reporter's pledge of confidentiality, thereby discouraging people with knowledge of real abuses to blow the whistle to the press.