Thursday, February 17, 2005

Jailing Journalists

Jailing Journalists

February 17, 2005

You won't often read this on an editorial page, but journalists are not above the law. This uncomfortable truth was reaffirmed by three federal judges on Tuesday. They upheld a lower court ruling that two journalists — Judith Miller of the New York Times and Matt Cooper of Time magazine — will have to go to jail if they won't reveal their sources to Patrick J. Fitzgerald, the special prosecutor investigating White House leaks.

The leaks "outed" an intelligence agent because the Bush administration had a gripe against her husband. That looks like a crime. But if journalists are exempt from the citizen's normal duty to testify about knowledge of a crime, and the leaker is also exempt on grounds of self-incrimination, there may be no way this crime can be punished.

Unsurprisingly, we believe that the work of journalists is socially valuable. And anonymous sources are sometimes necessary to that work. That is why we favor a "journalist's privilege" to honor promises of secrecy — but we realize that two caveats may also be socially valuable. First, that privilege cannot be absolute. It must be balanced against other considerations, such as enforcing the law. Second, striking that balance cannot be up to the sole discretion of individual journalists. That judgment should be made by courts or — preferably — by Congress, with a national shield law.

For more than three decades, the privilege afforded journalists — unlike, say, lawyers or spouses not to testify against someone — has been a muddle. Journalists have had to promise anonymity without knowing whether this might land them in jail. If the extent of the privilege was clear, most journalists would not promise what they could not deliver.

The problem for Miller and Cooper is that they have already made the promise of anonymity and feel obliged to keep it no matter what the courts decide.

Miller and Cooper are not even the ones who published the CIA operative's name. That was columnist Robert Novak, and the mystery of why he is not packing for prison remains unsolved.

Cooper even testified at one point, when a suspect in the leak investigation asked him to confirm that the prosecutor was barking up the wrong tree. Cooper did it, and immediately was subpoenaed again for other evidence.

It is hard to believe that Fitzgerald has any real doubt at this point about the culprit's identity, or that he has much to gain from harassing Cooper and Miller.

Fitzgerald has demonstrated that if journalists should not have total discretion about the extent of the privilege, neither should prosecutors. That's why we need a clear law.

Meanwhile, sending these two dedicated journalists — who weren't even involved in the actual CIA leak — to jail would be utterly unfair and preposterous.