September 27, 2004


A Leak Probe Gone Awry: The year-old investigation into who named a covert C.I.A. agent has devolved, as we feared, into an attempt to compel journalists to reveal their sources. (NY Times, 9/27/04)

The focus of the leak inquiry has lately shifted from the Bush White House, where it properly belongs, to an attempt to compel journalists to testify and reveal their sources. In an ominous development for freedom of the press and government accountability that hits particularly close to home, a federal judge in Washington has ordered a reporter for The New York Times, Judith Miller, to testify before a grand jury investigating the disclosure of the covert operative's identity and to describe any conversations she had with "a specified executive branch official."

The subpoena was upheld even though neither Ms. Miller nor this newspaper had any involvement in the matter at hand - the public naming of an undercover agent. Making matters worse, the newly released decision by Judge Thomas Hogan takes the absolutist position that there is no protection whatsoever for journalists who are called to appear before grand juries.

This chilling rejection of both First Amendment principles and evolving common law notions of a privilege protecting a reporter's confidential sources cries out for rejection on appeal, as does the undue secrecy surrounding the special prosecutor's filings in the case.

Mr. Novak has refused to say whether he received a subpoena. But other journalists have acknowledged getting subpoenas and some have testified about their contacts with I. Lewis Libby, Vice President Dick Cheney's chief of staff. They say they did so based on his consent, but consent granted by government employees under a threat of dismissal hardly seems voluntary. Once again, none of these journalists were involved in the central issue: the initial public identification of Mr. Wilson's wife.

Setting aside for the moment the question of whether there should be any privileges, the central issue is not that the information was revealed but whether it was illegal to reveal.

If the communication of information was in and of itself a crime then it can not, or should not, be privileged.

However, such communication would not even be illegal if Ms Plame was not covered by the statute because not a covert operative operating outside the United States in the last five years--which seems entirely likely--or if the CIA was not concealing that she had been covert--her identity seems to have been open knowledge in Washington--or if the revealer would not have known she had been covert--again quite likely.

If it wasn't illegal to reveal that she worked at CIA then the probe should end. If it was then the reporters should reveal details of the crime they unwittingly participated in.

Posted by Orrin Judd at September 27, 2004 4:06 PM

"evolving common law" sounds so much better than "made up".

Posted by: mike earl at September 27, 2004 4:13 PM

Maybe Bill Burkett was the source. I hear he's unimpeachable.

Posted by: brian at September 27, 2004 4:19 PM

I thought Clinton was unimpeachable?

Posted by: oj at September 27, 2004 4:26 PM

A little knowledge of the law is a dangerous thing. No "privilege" is absolute -- this is why they call them "privileges" and not "unalienable rights."

In the law, the attorney-client privilege is subject to what is known as the crime-fraud exception. If a crime or fraud is furthered by way of otherwise privileged communications, then the courts will peirce the privilege.

Posted by: AML at September 27, 2004 4:54 PM

The Times certainly wants it both ways: investigate the leak, but don't question any reporters to whom the information may have been leaked. Yeah, that'll work.

Posted by: PapayaSF at September 27, 2004 4:56 PM

Side note: do you think that Dan Rather was thinking of Bill Burkett when he said that he was relying on an "unimpeachable source"?

I don't. But the initials might be B.B. (no, not Billy Barty).

Posted by: old maltese at September 27, 2004 5:32 PM

If someone is unimpeachable, doesn't that make them peachable?

Posted by: Mike at September 27, 2004 9:05 PM

Funny how everyone but Novak seems to have his (her) panties all bunched up over this.

Funny how Scooter Libby is giving reporters the green light to talk.

When all is said and done, Joe Wilson is going to be THE ONE, because he is the only one who seems to have profited from this kerfuffle. Unless Valerie did it herself.

Posted by: jim hamlen at September 27, 2004 9:28 PM