Unnecessary chill

August 13, 2004

THE INVESTIGATION into who might have knowingly identified Valerie Plame as a covert CIA officer ought to be pursued vigorously. Her outing, apparently an act of political revenge, endangered not only her but other agency operatives and perhaps some of its operations. Under the Intelligence Identities Protection Act, it was a serious federal crime.

But this week, that probe seems to have veered off course - with too much focus on the reporters who published the leak and not enough on the "senior administration officials" who did the leaking.

With a Time magazine reporter held in contempt by the federal District Court in Washington for refusing to reveal his sources to a grand jury, and the court taking aim at other reporters, the legal gray area of whether news-gatherers can truly keep promises of confidentiality to sources may end up once again before the Supreme Court.

In the meantime, the prospect of reporters being jailed for protecting their sources already induces a chill on the flow of information - particularly from within government - that serves neither law enforcement nor the public's larger ends.

Yes, anonymous sourcing has been abused by reporters and sources, to the point where many news organizations these days are trying to limit its use. News consumers should be skeptical of the whole process of leaking. But like it or not, such sourcing is often the only way for the public to find out about abuses of official power. Without it, "Deep Throats" of all kinds may be silenced by fear, and all types of Watergates may never see the light of day.

More than 30 states and the District of Columbia have reporters' shield laws, but 32 years ago, the Supreme Court ruled that reporters couldn't claim that blanket privilege under federal law. It was a 5-4 ruling, however, and one of the dissenters, Justice William O. Douglas, noted that the lack of such protection impedes "the wide open and robust dissemination of ideas and counterthought ... essential to the success of intelligent self-government."

Another dissenting justice, Potter Stewart, argued for a limited privilege, saying reporters shouldn't be forced to testify if the information could be obtained "by alternate means less destructive of First Amendment rights." In this case, some administration figures, including President Bush, already have been interviewed, but it does not appear the probe has been exhausted within the administration.

If this leak did come from high in this administration - which appears to be the case - here's a path far less damaging to the public's interest than threatening to jail reporters: Ask the White House why it's not unveiling this illegal leaker on its own.

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