All Leaks Are Not Alike

There is a law, as there should be, against revealing the name of a covert CIA agent. It looks as if people in the Bush administration probably broke this law last summer. Annoyed beyond endurance at Joseph C. Wilson IV -- who was sent to find evidence that Saddam Hussein tried to buy uranium and who came back saying there wasn’t any -- somebody in the administration told journalists that Wilson’s wife had helped him get the job and, by the way, she was an undercover CIA agent. This revelation was supposed to be damaging to Wilson in some way that is not clear.

The press, including this newspaper, did not approve. Time magazine, for example, noted dismissively that “some Bush partisans” were saying that the leak was “no big deal. But the facts speak otherwise.” There were calls for a special counsel. One was duly appointed and soon began issuing subpoenas to journalists. If your job is to find out who leaked secret information to journalists, this must seem like a logical thing to do. But the press, including this newspaper, does not approve of that either. Leaks are not only the vital fuel of investigative journalism, they are an essential mechanism for holding powerful institutions accountable.

Unlike many states, the federal government has no “shield” law allowing journalists to protect their sources. On Tuesday, Matt Cooper of Time magazine was ordered to jail for refusing to respond to a subpoena. (He is free pending appeal.)

Here we have an uncomfortable contradiction. You can believe that people who reveal the names of CIA agents deserve exposure, vilification and punishment. You can believe that people who leak secret information to journalists deserve confidentiality, praise and protection from punishment. But you cannot easily believe both these things in this case because the good and the bad people are the same people. The purpose of allowing journalists to protect the identity of leakers is to protect and encourage leaks. But there are leaks and there are leaks. It makes no sense for the government to encourage leaks that it rightly outlaws.

Journalists would prefer not to make this kind of distinction. A clear and simple principle that you never reveal a source would encourage leaks more effectively than a policy with a lot of provisos. Of course, any journalist is free to promise anonymity to a source, with or without a “get out of jail free” card. But the belief that a journalist is willing to go to jail to protect a source’s identity will never be as reassuring to potential sources as certainty that he or she won’t have to.

In the haze of self-righteousness about protecting sources, though, it is easy to lose sight of the cost. The cost of giving absolute legal protection to journalists’ secrets is to make the government’s secrets impossible to protect.

Maybe it’s time for journalists and judges to stop staging these 1st Amendment melodramas. Journalists -- who are citizens too -- could help by being less promiscuous with offers of anonymity in the first place. If it is information you believe should not be out there -- because it endangers lives (of a covert agent’s contacts, for instance) or because it is wrong or deeply misleading -- why should you even consider going to jail to protect the source?