Locking up reporters for `national security'

October 14, 2004|By Clarence Page

WASHINGTON -- It's really getting wacky in Washington these days, folks.

New York Times reporter Judith Miller has been sentenced to jail in connection with a story that she reported and researched but, for whatever reason, never got around to publishing.

Earlier, Time magazine correspondent Matt Cooper also was sentenced to jail for refusing to reveal his sources for a story about a story that already had broken elsewhere.

Welcome to the latest outrages that we Americans have to put up with, all in the name of "national security."

Last week, U.S. District Judge Thomas F. Hogan held Ms. Miller, a bioterrorism expert, in contempt of court for refusing to divulge her confidential sources to prosecutors investigating the leak of undercover CIA officer Valerie Plame's identity to syndicated columnist Robert Novak.

Judge Hogan, who ordered Ms. Miller jailed for up to 18 months unless she agrees to testify about her sources before a grand jury, allowed her to remain free while pursuing an appeal.

All of this for a story that she did not write.

By the way, yes, that's the same Ms. Plame whose husband, Joseph C. Wilson IV, a former diplomat, accused President Bush in a New York Times op-ed piece of relying on bogus intelligence when Mr. Bush charged that Saddam Hussein tried to get uranium in Africa.

Patrick J. Fitzgerald, the U.S. attorney in Chicago and the special prosecutor who was assigned to investigate the disclosure of Ms. Plame's identity, has been aggressively subpoenaing reporters for the identities of their confidential sources connected to the story.

Whether you agree with Mr. Novak's column or not, it strikes me as being a legitimate critique of the CIA's doubts about Iraq's supposed weapons of mass destruction, which falls well within the bounds of fair political comment that the framers of the First Amendment wanted to protect.

What we do know is that Mr. Fitzgerald issued subpoenas to several journalists, including Mr. Cooper, a veteran Washington reporter who co-wrote an article that said "some government officials" had revealed Ms. Plame's identity to Time.

When Mr. Cooper refused to appear before a grand jury to reveal his sources for that nugget that Mr. Novak had already reported in his column, a judge held Mr. Cooper in contempt, ordered him to jail and ordered Time to pay $1,000 a day, all of which were suspended pending appeal.

The ideal role for media is not to make either our own lives or those of government officials easier. It is to serve the public interest. After all, freedom of the press extends only as far as the ability of reporters to break important stories without government interference.

Ever since the U.S. Supreme Court's 1972 Branzburg vs. Hayes decision found that reporters have no special privileges under the First Amendment, the Justice Department has mostly followed Justice Lewis Powell's concurring opinion that a privilege of sorts does exist unless the government can show there is no other way except from reporters that it can obtain the information it needs.

Are the feds coming after journalists only as a last resort? Maybe so, although I find it hard to imagine that they could not have found the information they need through some other, less drastic means.

Interestingly, the law that the "leakers" are suspected of violating, the Intelligence Identities Protection Act of 1982, specifically exempts journalists or publications from prosecution for exposing a spy, unless they make a practice out of it. But federal law does not shield journalists from contempt citations for refusing to testify in federal cases, so Ms. Miller and company are being strong-armed to open their notebooks.

We have yet to see how much information federal investigators will gain by threatening journalists with jail. It is very easy to see how much we Americans stand to lose.

I know that the media are not always the most popular institution in our society, to put it mildly. But it is not just the rights of reporters that are at stake here. It is the public's right to have a check on government power that only a truly free press can provide.

Clarence Page is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Thursdays in The Sun.

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