Sources of much dismay

When a federal judge Thursday held New York Times reporter Judith Miller in contempt for refusing to answer questions before a grand jury investigating the leak of a covert CIA agent’s identity, the Bush administration’s war against the press entered a chilling new phase.

The New York Times is already fighting an attempt by Justice Department special prosecutor Patrick J. Fitzgerald to subpoena the telephone records of Miller and another reporter, Philip Shenon, in a separate probe of leaks from a government inquiry into the activities of two Islamic charities. Now Fitzgerald wants Miller to answer questions about who may have revealed the name of CIA agent Valerie Plame. Her husband, former diplomat Joseph C. Wilson IV, angered the administration by revealing that an official inquiry he had been asked to undertake found no proof that Iraq was seeking uranium from the African nation of Niger, as President Bush and others had alleged.

Someone revealed her CIA connection to a number of journalists, one of whom -- the conservative columnist Robert Novak -- published it, citing two “two senior administration officials” as his source. Miller did some reporting on the Plame affair but never wrote a story.

Even so, U.S. District Chief Judge Thomas F. Hogan ruled that she can be compelled to name her sources and faces up to 18 months in jail if she declines. Despite the ruling, Hogan was at pains to say, “Miller was acting in good faith, doing her duty as a respected and established reporter,” and he stayed her incarceration pending appeal, which the Times intends to file.

Miller, who won a Pulitzer Prize for her coverage of Afghanistan and Al Qaeda, has had a tough time over sources recently. Earlier this year she was one of the reporters whose credulous use of Iraqi exile and administration sources forced the Times to publish an admission that it had published false and exaggerated stories about Iraq’s purported possession of weapons of mass destruction in the run-up to the war.

But any mordant thoughts about having to live by the terms of one’s own Faustian bargains need to be put aside in this case because the principle Miller and her newspaper are defending is too important to permit sniping.

The Times’ publisher, Arthur Sulzberger Jr., told a television interviewer Friday, “We firmly believe we have the law on our side, that the 1st Amendment protects us from having to give this information.”

Let’s review the standards

In fact, Judge Hogan’s fine sentiments about Miller’s “good faith” notwithstanding, it’s difficult to see how his ruling meets even the slack federal standards that govern such situations. In the 1972 case of Branzburg vs. Hayes, the U.S. Supreme Court ruled that the 1st Amendment does not protect journalists from being compelled to testify before federal grand juries.

The court, however, was bitterly divided on the question, and Justice Byron White, who wrote for the five-member majority, was at pains to demonstrate that he and his colleagues were not sanctioning the sort of prosecutorial fishing expeditions the four dissenting jurists feared. Essentially, the ruling established a three-part test that has to be met before a reporter can be dragged before a federal grand jury and forced to reveal his or her sources: First, the government must demonstrate that the journalist actually possesses information concerning the crime under investigation. Second, the prosecutor must show that the facts at issue cannot be obtained from any other source. Finally, the government must show that its need for the information is sufficiently compelling to overcome any competing 1st Amendment issue.

In Miller’s case, it’s impossible to know how the government claims to have met these three requirements, since the arguments they have put before the judge are secret -- even from the reporter and her lawyers. When Floyd Abrams, one of her attorneys, requested at least a summary of the government’s filing, Hogan refused, asserting that the rules governing grand juries require secrecy.

“We haven’t the faintest idea what their submission said,” Abrams told the court.

Grand juries, particularly those considering so-called national security issues, frequently come uncomfortably close to behaving like Star Chambers -- but seldom quite this close.

Left to reason deductively from the record, any sensible person is bound to be skeptical of just how well the government has met the three-part Branzburg test:

First cause for skepticism: Given the fact that Miller never wrote a story about the Plame affair, how can the government possibly know that she has evidence of a crime? All prosecutors know for certain is that she did some reporting on the story. Now they propose to haul her in front of a grand jury and coerce her into verbally emptying her notebook of unpublished names, dates and allegations.

You don’t have to know a dry fly from a wet one to recognize a classic fishing expedition, when the line is being cast right under your nose.

Second cause for skepticism: Clearly, prosecutors feel this is the most convenient way for them to obtain information, but is it really the only way? Without some public showing of the efforts they’ve made elsewhere, with other potential witnesses, why should they be trusted?

If the prosecutors are arguing that they’re after the content of a one-on-one conversation that Miller had with a confidential source, how can they know that such a conversation occurred -- let alone when or with whom -- since Miller never wrote a story?

Third cause for skepticism: The 22-year-old law that may have been broken when somebody leaked Plame’s name to Novak is so narrowly drawn that no one ever has been prosecuted for violating it.

The leaker, for example, would have had to come by knowledge of Plame’s status as a part of his or her official duties and would have had to have disclosed Plame’s identity with the intention of preventing her continued performance as a covert agent. That specificity is a byproduct of the statute’s peculiar origins. It was drafted to halt the activities of one man, Philip Agee, a renegade CIA agent who was writing books and articles that named colleagues who were still under cover in foreign countries.

If a law can sit on the books for more than two decades without ever once being invoked, just how compelling can the government’s need actually be, especially when weighed against the 1st Amendment interests that clearly are at issue in this case?

Waivers? How chilling

The chilling implications of all this are matched by those of still another coercive tactic federal prosecutors are employing in the Plame investigation: requiring government employees to formally waive any guarantee of confidentiality they may have obtained from a reporter. At least one reporter, Time magazine’s Matthew Cooper, already has testified after receiving such a waiver from vice presidential aide Lewis “Scooter” Libby. The administration official granted a similar waiver to Washington Post reporter Walter Pincus, who nonetheless refused to name his sources when deposed by investigators. Cooper has been served with a second subpoena to appear before the grand jury and is fighting it. After Miller was held in contempt Thursday, Bill Keller, the Times’ executive editor, told reporters: “This business of sources signing waivers deserves a lot more attention. This is going to be all the rage in both government and corporate circles as a way to intimidate employees into not letting reporters know when they see something amiss.”

Keller is correct. It’s possible that only avarice makes corporate or governmental bureaucrats more ingenious than the inclination to secrecy. Faced with an embarrassing leak, why not demand that every employee who might have been the source formally waive any guarantee of journalistic confidentially? Anybody who declines might as well wear a sign that says, “Fire me. I’m the snitch.”

How long can it be before private corporations demand blanket versions of such waivers as a condition of employment?

This country is now at war in part because our government acted on misinformation collected in secret and selectively disseminated. Miller and the New York Times were unwittingly complicit in that process.

The fact remains, however that the road to Baghdad was paved with ignorance. Miller and her colleagues may understand this with a special clarity, but the 1st Amendment rights they defend are not theirs but the American people’s. As they weigh the merits of Miller’s case, Americans might ask themselves whether they’d like to know more or less about their government’s conduct when they go to the polls next month. That’s what this fight is about.