It's a crime against the United States to reveal the identity of CIA agents charged with protecting the country by gathering intelligence by their various means.
So when someone, perhaps in the White House, leaked to the press the fact that a former ambassador's wife was a CIA agent, she was effectively ruined as a spy and the people she'd had contact with were endangered.
A grand jury investigation followed and several reporters were subpoenaed to testify as to who gave them this secret information as to the identity of our spy.
The reporters have refused to give up the information, even though they've been told they will be held in contempt of court for willful disobedience to the court's legal process, a grand jury subpoena. Maybe they've been offered immunity from prosecution and have invoked the Fifth Amendment right against being compelled to incriminate themselves out of their own mouths, but they still won't talk.
Why won't they talk if they can't go to jail?
Because if they talk, the reporter's business, the newspaper business, will dry up, they fear, because no one in government will talk to a reporter to leak what's really going on with the people's business if the leakers are afraid the reporter's promise will not be kept to keep secret the source of the information.
The news source will be burned as badly as the spy was burned.
Newspapers such as the New York Times, the Washington Post, and other great papers are upset that the law does not protect their right to gather information.
Government is upset that its employees are committing crimes such as burning spies to reporters.
Government wants to be able to do something about this sorry state of affairs where it cannot even protect its spies from reporters. It wants to force reporters to talk, to give up their sources.
Government argues that it is more important to stop the commission of a crime than it is to write about it.
Reporters and newspapers say it is more important to keep us, the voters, informed of leaked information, such as who our spies are, because why? I'm not sure I know why spies should be burned to sell newspapers or to keep me informed. How does it help me, or you, to know that So-and-so is really working for the CIA. Maybe she's hot on the trail of the next Trade Center bomber.
So far, the Supreme Court has sided with government in a case called Branzburg v. Hayes (1972).
Here's the latest on the Judith Miller, et. al. saga. She's the reporter for the NY Times who risks going to jail for protecting her source by keeping her mouth shut despite a court order to talk. Assuming she loses, she'll be in jail for the balance of the 18-month federal grand jury term, renewable.
The key to her cell-door will be her tongue.
Well, why isn't there a privilege for reporters? Aren't reporters important?
One of the problems is that reporters aren't the only trade, calling, business, or profession that would like not to have to answer questions before a grand jury. So would cops, talk therapists, social workers, baseball players (steroids), and a lot of other people. Meanwhile, only attorneys, ministers of religion concerning confessions to get straight with God, and a limited number of others, such as some medical doctors, are cloaked in a legal confidentiality privilege, and even these contain limitations and exceptions.
If the client tells the attorney that I just shot my grandmother, the statement is privileged. But if the client says that as soon as I leave your office I'm going to shoot my grandmother, the statement is not privileged and the attorney had better start thinking in terms of picking up the telephone.
So the courts do not wish to extend the confidentiality privilege to reporters. One of the problems is in identifying who is a legitimate reporter.
I'm reporting here on developments in Constitutional Law. Would this make me a reporter entitled to a privilege of confidentiality if the Supreme Court were to recognize such a new privilege under the First Amendment? I can imagine the Court saying that the right of the citizenry to be kept informed includes the subsidiary right of allowing reporters to keep their sources confidential despite subpoenas and grand juries. I might have difficulty imagining this set of justices holding that, but someday it might happen, perhaps as the result of this case. Meanwhile, Branzburg declines to recognize such a right.
Which way would you jump on such an issue? Current events soon make their way onto law exams, don't they.
Could you craft a principled reporter's privilege in words that protected the Washington Post and the New York Times without also immunizing every Tom, Dick, and Harry who wanted immunity claiming he was only committing this bank robbery because he wanted to write about it for his school newspaper?
The NYT report by Adam Liptak on the Joseph Wilson - Valerie Plame, Judith Miller (NYT)-Matthew Cooper (Time) controversy appears below, for your educational benefit and convenience, in the sincere hope that this represents fair use.
The Washington Post report is here.
Jack Shafer of Slate has this interesting take on Miller & Cooper's plight, with a link to the Intelligence Identity Protection Act of 1982 that may have been violated, or may not, and what it supposedly means according to the attorneys who drafted it.
For a comment on the bloggers' non-privilege to be treated as journalists under the laws of some states, check this article by an NYU business professor.
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3/4/05
This just in, a lower court in California holds that a blog site must reveal its sources (Apple employees, apparently) to Apple where the site published confidential data about Apple. No reporters privilege recognized. Here.
The Electronic Frontier Foundation links to court filings on this case here.
Additional, Earthtimes.com, here.