Too broad a shield

THE ASPENS are turning!

Turning on one another, that is -- notwithstanding their famously intertwined roots. So in the “who-leaked-Valerie-Plame’s-name game,” Scooter Libby leaves Judy Miller languishing in the pen for want of that crucial up-close and personal waiver; Judy thanks Scooter with grand jury testimony that leaves him deep in legal doo-doo; Karl Rove and mysterious turncoats in Dick Cheney’s office also reportedly finger Libby as the leaker; Judy’s colleagues at the New York Times keep busy trashing their erstwhile heroine. It almost makes you think there’s no such thing as loyalty anymore, doesn’t it?

But Judith Miller has quite a few allies left when it comes to the question of whether Congress should enact legislation to prevent courts from forcing journalists to disclose their sources. Though the “circumstances” surrounding Miller’s jail time “lack the comfort of moral clarity,” as Executive Editor Bill Keller so delicately put it in a memo to his demoralized New York Times staffers, media outlets across the country have rallied around Miller’s call for a federal shield law.

This is a mistake.

The bill Congress is considering -- the ludicrously titled “Free Flow of Information Act” -- is a spectacularly foolish piece of legislation. It will shield criminals as often as journalists and prevent the public from getting the information necessary to prosecute crimes.

In its current form, the proposed legislation would absolutely prohibit federal courts from compelling journalists to disclose the identity of someone they “believe to be a confidential source.” The only exception -- in the House version of the bill -- would be in circumstances where disclosing the identity of a source “is necessary to prevent imminent and actual harm to national security.”

OK. So a Jeffrey Dahmer copycat tells Judy Miller that he ate half a dozen people for breakfast and intends to eat six more at lunch. Investigating law enforcement officers ask Miller to reveal the source for her upcoming feature on “Great Recipes With Human Ingredients.” Miller declines. Under the proposed legislation, investigators and prosecutors are out of luck. The Dahmer copycat munches his way through more victims while Miller enjoys a series of Pulitzer Prize-winning scoops.

True, cannibals aren’t a dime a dozen. But the proposed legislation could prevent federal law enforcement agents from effectively investigating and prosecuting a wide range of serious crimes, including those involving threats to national security that are grave but not “imminent.” The legislation also would render largely meaningless existing federal criminal statutes that prohibit the disclosure of classified information, because leakers could disclose most types of classified information to journalists with impunity, safe in the knowledge that law enforcement officials could not require journalists to reveal their identities.

More generally, the proposed legislation would enable journalists to be entirely co-opted by their sources, who could use them to accomplish their own dirty -- and sometimes criminal -- work.

This appears to have been precisely what happened in the Plame affair. It may well be business as usual in politics, but it’s still nasty stuff, and the law shouldn’t encourage politicians to use journalists to aid and abet politically motivated character assassinations.

That’s not to say that journalists should enjoy no legal privilege at all. Instead of enacting the legislation proposed, Congress should codify what nine of the 12 federal judicial circuits already do, in one way or another: recognize a “qualified privilege” for journalists and require courts to apply a balancing test.

In a criminal case, for instance, if a prosecutor wants to subpoena a journalist, the journalist can come forward and object to disclosing the requested information. The burden is then on the prosecutor to convince the court of the critical importance of the desired information and demonstrate the impossibility of obtaining it in any other way. The judge (not the journalist and not the prosecutor, because neither can be wholly disinterested) then decides whether the public interest in protecting journalistic confidentiality outweighs the public interest in investigating and prosecuting the particular crimes at issue.

A qualified privilege for journalists would be parallel to other forms of legal privilege. Attorneys, for instance, generally can’t be required to divulge confidential information provided by clients, but there is an exception for situations in which clients seek to use attorneys to further the commission of a crime or fraud.

Miller will never be satisfied by a qualified journalistic privilege because, in her case, the D.C. Circuit paved the way for her jail term by ruling that “if such a privilege applies here, it has been overcome” by the prosecutor’s arguments.

But the rest of the media shouldn’t buy “Miss Run Amok’s” arguments for absolute journalistic privilege.

“Journalistic privilege” doesn’t exist for the sake of journalists -- and it certainly doesn’t exist for the sake of their sources. The only basis for journalistic privilege is the good of the public.