A good take on the contrived controversy surrounding Joseph Wilson, yellowcake and “The Plame Affair”:
Wall Street Journal Editorial
Prosecutor of the Times
February 23, 2005; Page A16
“After an egregiously long delay, Attorney General John Ashcroft finally did the right thing yesterday when he recused himself from the investigation into who gave the name of a CIA operative to the columnist Robert Novak. Mr. Ashcroft turned the inquiry over to his deputy, who quickly appointed a special counsel.”
In the recent annals of press freedom, there are few more regrettable sentences than those two from a December 31, 2003, editorial in the New York Times. The special counsel that the Times was cheering on, Patrick Fitzgerald, is now threatening a Times reporter with jail, and in a way that jeopardizes the entire press corps. This is what happens when liberals let their partisan disdain for a President obscure their interest in larger principles.
The Times was hardly alone, let us hasten to add. Well-nigh every liberal newspaper in the country was calling for Mr. Ashcroft to recuse himself and name a “special counsel,” in the hope of nailing the Bush Administration official who had “leaked” the name of CIA analyst Valerie Plame. The idea that there might be some First Amendment equities at stake was overlooked amid the partisan frenzy, and in any case Mr. Novak was expendable because he was a conservative. (See our February 20, 2004 editorial, “The Novak Exception.”)
In unleashing the special counsel, however, these media liberals invited an attack on their own practices. Mr. Fitzgerald has since subpoenaed Times reporter Judith Miller, and Time magazine writer Matthew Cooper, to testify before his grand jury about their Administration sources. They have refused, claiming a First Amendment privilege to protect confidential sources. But Mr. Fitzgerald is insisting, and a unanimous federal appeals court recently agreed, that the reporters can be held in contempt of court and jailed if they refuse to comply.
The bitterest irony here is that this case should never have been investigated in the first place. Ms. Plame is the wife of Joseph Wilson, the CIA consultant who wrote a July 2003 op-ed in the Times accusing the Bush Administration of lying about yellow cake uranium ore from Niger. The allegation became a political cause celebre at the time, though a year later both a British and a U.S. Senate Intelligence Committee probe found that the White House had been accurate and that Mr. Wilson was the one who hadn’t told the truth.
Meanwhile, amid the uproar, someone told Mr. Novak that Mr. Wilson had been recommended for the Niger project within the CIA by none other than his own wife, Ms. Plame. Mr. Novak duly reported that fact, which nobody noticed until Democrats and the media began to express outrage that a CIA agent had been “outed,” and that this was supposedly a crime under the 1982 Intelligence Identities Protection Act.
In fact, it is almost certainly not a crime. That statute was intended to stop the treasonous betrayal of secret agents in the field by the likes of the notorious Philip Agee, and it requires a prosecutor to show that the discloser identified a “covert agent” knowing that the agent had been undercover in a foreign country within the last five years. For an official who had no such knowledge, the law also requires that the prosecutor show a pattern of exposing agents.
It’s far-fetched to believe that Mr. Novak’s sources were culpable under any of these terms. Ms. Plame was safely ensconced at CIA’s Langley headquarters, and if anything her husband was the one who first compromised her when he went public with accusations about the CIA consulting job that she had recommended him for. Once Mr. Wilson made himself part of a political campaign against the Bush Administration and the Iraq War, his wife’s role was bound to become public.
A wiser prosecutor than Mr. Fitzgerald might well have come to this same conclusion and shut down the probe. But like so many “special” counsels who have only one case to prosecute, Mr. Fitzgerald seems to believe he’ll be a failure if he doesn’t charge someone with something. Thus his overzealous pursuit of reporters and their sources.
We are now left with a classic Constitutional showdown between the rights of a prosecutor to investigate an alleged crime and the right of the press to protect its sources. The problem for the media is that while the First Amendment protects the right to publish, this case is about the news-gathering process. And going back to Branzburg v. Hayes in 1972, the Supreme Court has never found a special First Amendment privilege that protects reporters from testifying in criminal cases.
Thirty-one states have passed “shield laws” that protect the reporters of some news organizations to one degree or another. But there is no federal shield law, and ever since Branzburg a kind of rough policy truce has prevailed, thanks to Justice Department guidelines that instruct prosecutors not to pursue reporters and their sources except in the most urgent circumstances. By our reading Mr. Fitzgerald is violating at least one of those guidelines, which is that there should be “reasonable grounds to believe” that “a crime has been committed.”
An Attorney General who understands prosecutorial discretion might have restrained Mr. Fitzgerald, but in this case, thanks to relentless lobbying by the Times and other media, Mr. Ashcroft recused himself. That leaves Deputy Attorney General James Comey, who selected Mr. Fitzgerald and is also a career prosecutor who isn’t about to second-guess his friend and former peer.
Having lost so decisively with a three-judge panel of the D.C. Circuit Court of Appeals, the Times and Time magazine will ask for an en banc ruling of the entire circuit and then may decide to appeal to the Supreme Court. While that might keep their reporters out of jail, at least for a while, appealing to the current High Court could also end up eliminating whatever hint of protection for sources remains as part of Branzburg.
We are told that the Times detects some silver lining in the concurring opinion of D.C. Circuit Judge David Tatel that claims a “common law privilege” (as opposed to a Constitutional privilege) to protect sources, and therefore it wants to appeal on these grounds to the Supremes. But we think Judge Tatel’s opinion is in some ways more dangerous for the press, inviting judges to “balance” the competing claims in a way that would inevitably intrude on news-gathering and publishing decisions. This judicial meddling is the last thing a free press needs.
Some of our media friends are also pushing a federal shield law, and one has been introduced in the House and Senate. A large question, however, is who will be shielded. The Reporters Committee for Freedom of the Press wants to protect not just reporters from established news organizations but everyone who writes anything, which means that almost anyone with a laptop and a Web site could claim to be protected from having to provide grand jury testimony. This Congress will never pass such an expansive shield, and we aren’t sure it should.
We sympathize with Ms. Miller and Mr. Cooper, two fine and honorable journalists, but there is no easy way out of their predicament. Unless their lawyers can negotiate some compromise with Mr. Fitzgerald, they may be headed for jail. The prosecutor bears some blame for letting this showdown run out of control, but no more than the editors who let their partisanship trump their principles by inciting this pointless investigation.