Investigation or Illusion?   

The secretive probe into the leak of Valerie Plame’s name has done little more than threaten the rights of the press.

"To convince an audience that an illusion is real, the magician creates a plausible diversion."
--Robert Preston, in the role of Carroll Todd, "Victor/Victoria," 1982

"Outing" a CIA agent is a felony under the 1982 Intelligence Identities Protection Act. Given that the Bush administration abhors leaks, you'd think that the individual responsible for such a disclosure would have been uncovered by now. Yet it's been nearly a year-and-a-half since columnist Robert Novak published CIA operative Valerie Plame's name, and there are no indictments in sight. The details of the investigation headed by special prosecutor Patrick J. Fitzgerald are shrouded in secrecy. But it seems that so far, he's come up empty.

Now it just wouldn't do to let the public think that the government isn't taking the leak and the investigation seriously. In order to perpetuate the illusion that it is, Fitzgerald had to create a plausible diversion that would attract lots of attention. What better than to subpoena some journalists?

He's summoned several of them to come forward and name their sources. Most, if not all, never published Plame's name. (It remains unknown whether Novak has been subpoenaed and, if so, whether he cooperated.) A few journalists agreed to testify, claiming that their confidential sources had released them from the promise to keep their names secret. Others, however, including New York Times reporter Judith Miller, refused. In October, Miller, as well as Time magazine reporter Matthew Cooper, was found in civil contempt of court by federal District Judge Thomas F. Hogan in Washington, D.C. Each of them could be jailed for up to 18 months if they continue to resist and if an appeals court doesn't reverse Hogan's ruling--neither of which had occurred at AJR's press time.

Predictably, much of the media were outraged. Columnists and editorial boards rightly castigated Fitzgerald for targeting the reporters. Without a guarantee that journalists can keep their promises of confidentiality, the argument goes, sources will dry up and the public will be deprived of essential information.

But others argue that these leakers don't deserve to be protected. After all, they may have broken the law. And it is hard to see how the public interest was served by revealing Plame's name. Besides, everyone knows that reporters rely on far too many anonymous sources as it is, critics say. What better way to call a halt to this pernicious practice than by tossing a few of them into jail? That'll teach 'em.

Where does all this leave us? In the dark.

The intelligence community has virtually unlimited authority to keep its personnel and its practices under wraps. The Bush administration, especially since September 11, 2001, has elevated secrecy to an art form, and Fitzgerald's underlying investigation is shielded from public scrutiny. The most important role of the press is to keep an eye on the government. But it is almost impossible to discover what the government is up to, except through official, approved channels.

The news media remain by far the most transparent entity in the country. Their work is laid out daily for analysis and review, and most of their sources and newsgathering methods are examined by readers, viewers and media critics. But inevitably, as government grows more secretive, the press must rely more

frequently on confidential informants to deliver the news.

Despite this, the press has no right to protect its sources, whether based on the First Amendment or on common law, at least according to Judge Hogan. Citing Supreme Court Justice Byron White's opinion in the 1972 case Branzburg vs. Hayes, Hogan wrote that "any incidental burden that testifying before a grand jury may have on the journalists was far outweighed by society's interest [in] law enforcement."

Media lawyers have suggested that the solution to this crisis is a federal reporter's shield law. Thirty-one states and the District of Columbia have enacted some version of statutory protection providing a testimonial privilege for the press. Congress has never done so, in part because some journalists insist the First Amendment should give them all the protection they need, and settling for anything else would be a sellout.

And any proposed federal shield law would be controversial. Who would be covered by the law? Should the privilege be absolute, or could it be taken away in certain circumstances? Would the public stomach a law which would be perceived by some as "special interest" legislation at a time when the news media are subject to greater criticism than ever before?

These questions would undoubtedly occupy the press and the government for many months to come. Meanwhile, the journalists would be in jail, and their sources at large. That would be a "plausible diversion" beyond Fitzgerald's wildest dreams.