Full Court Press

I'm not sure the title for this post makes much sense, but it's my blog and I'll do what I want.
It's time to step back a little from today's top stories and reflect.
I've read a lot today about the Judy Miller/Matthew Cooper court ruling, some of it in response to questions I raised on several blogs.
I'm going to try to make some sense of what I think is a confusing story.
Let's review the core issues (I'm providing lots of links because I think it's important for those who want to understand this -- like myself -- to get back to the source information):

• Someone leaked to the press the information that Valerie Plame, wife of former diplomat Joseph Wilson, was a covert CIA operative. While at least six journalists reportedly received the tip, only conservative columnist Robert Novak when to press with it, on July 14, 2003.
• On September 28, 2003, the Washington Post reported that, "a senior administration official said that before Novak's column ran, two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson's wife." (Sorry -- I couldn't find the Post story, but this is Slate.com's commentary on it)
• It has been widely assumed that this information was leaked as an act of revenge by Bush adminsitration officials against Mr. Wilson. Why? Because Novak's column was published shortly after Mr. Wilson wrote an Op-Ed piece in The New York Times lambasting President Bush for citing in his State of the Union address flawed intelligence about an attempt by Saddam Hussein to purchase uranium yellowcakefrom Niger, as part of his reasoning for the Iraq war.
• The revelation of the identity of covert CIA operatives is a felony, under the Intelligence Identities Protection Act of 1982.
• On September 30, 2003, the U.S. Department of Justice launched a formal investigation into the leak, and on December 30 of that year appointed Patrick J. Fitzgerald as special prosecutor to lead the investigation.
• In the course of his investigation, Mr. Fitzgerald subpoenaed several reporters, including Matt Cooper (Time), Tim Russert (NBC News), Walter Pincus (Washington Post), and Judith Miller (New York Times).
• Ms. Miller, who had become a controversial figure due to her reporting on weapons of mass destruction in the leadup to the Iraq war -- reporting that the Times later took the unusual step of disavowing -- rose to the forefront of the Plame investigation when she refused to testify and were cited for contempt of court.
• Mr. Cooper, Mr. Russert and Mr. Pincus all gave depositions in which they reportedly discussed information they were given by I. Lewis "Scooter" Libby, an anonymous source who had waived his confidentiality. But both Mr. Cooper and Ms. Miller refused to testify before grand juries.
• Mr. Cooper and Time Inc. were found in contempt of court on August 9, 2004.
• Ms. Miller was found in contempt on October 7, 2004.
• Today, a U.S. Court of Appeals panel unanimously upheld the contempt citations, rejecting the First-Amendment arguments of attorney Floyd Abrams, who represented both defendants.
• Robert Novak has never revealed whether he has been subpoenaed or testified in this matter. Editor & Publisher reports today that, "It is widely believed by reporters and lawyers involved in the probe that he reached a negotiated 'arrangement' with Fitzgerald -- and that he 'sang.' "

So, what does all this mean? Is it a case of brave reporters risking imprisonment to defend the principles of the U.S. Constitution against the encroachments of the government? Or is it a case of protecting a criminal? Could it be both?

Probably. As a former journalist, I may be a bit of a First Amendment extremist, but I do think that compelling journalists to reveal their sources is a scary thing. Yes, in this case, the source may have committed a felony, but I wholheartedly disagree with the blogger who told me that national security concerns trump the First Amendment.

If the First Amendment is discarded or cheapened, just what is it we will be securing? The U.S. Constitution, while not a flawless document, is a remarkable one -- one that has no superior as a framework for government. And the first amendment was designed to protect a number of basic freedoms: Religion, speech, assembly, and justice under the law. The First Amendment, while obviously open to interpretation, is pretty clear in its instruction that Congress shall make no law "abridging the freedom of speech, or of the press."

The irony in this case is that neither Mr. Cooper nor Ms. Miller wrote directly about the leaked information. Neither wrote anything about Ms. Plame's identity until after Mr. Novak had spilled the beans, and only Mr. Cooper did so then. Mr. Fitzgerald has pursued them for their supposed knowledge of information important to his investigation.

Indeed, the fact that Ms. Miller did not write about the case -- only gather information for a possible article she then decided not to file -- is one of the arguments against according her any privileged status in this case. If she did not report the information in the press, she is not protected from revealing the names of those who told her things.

Here's what I think:

• I am not happy that the person who leaked Ms. Plame's identity to the press remains unnamed and unpunished. This person committed a crime, and circumstances suggest strongly that this crime was committed for reasons of political vengeance. That is intolerable.
• I believe strongly in the right of the press to freely pursue its goals of publishing information in the public interest, without interference from the government. I am, as I said earlier, a bit of a First Amendment "extremist."
• I believe that Mr. Fitzgerald should pursue all other available means of ascertaining the identity of the leaker. Perhaps he has done so (Tim Grieve reports in Salon.com tonight that Judge David Tatel indicated he believes so and that eight pages of Tatel's opinion were blanked out because they contained secret grand jury material), but that imperative is worth stating.
• I believe there are circumstnaces in which a reporter has no obligation to honor an agreement to protect a source. I think this case is a perfect example where the public interest would be served by revelation of the leaker's identity. However, I believe it is unconditionally the reporter's right to decide whether to reveal the source's identity. Personal morality should be the driver here, not compulsion by the government.

More later. I'm tired. I didn't even draw any serious conclusions here, but I gave myself a good refresher on this whole issue.