Just a thought before I go

For the night, that is.

As I'm sure you know, on Monday the Supreme Court rejected the appeals by Matthew Cooper (Time magazine) and Judith Miller (New York Times) against demands they reveal their sources for stories which they wrote (Cooper) or for which they gathered information but didn't write (Miller) relating to the Valerie Plame investigation. They now face up to 18 months in prison.

Or, rather, faced in Cooper's case, since Time said on Thursday it would turn over Cooper's notes, which, it said, should eliminate the need for his testimony and so remove the justification for jailing him.

The subpoenas issued to the two and the appeals that followed produced a fair amount of discussion and argument over the role of reporters and the idea that there should be a sort of journalistic "Get Out of Jail Free" card - that is, the suggestion that the duty incumbent on the press under the freedom of the First Amendment requires that reporters be allowed to shield their sources for the sake of keeping open a flow of information that government or other powerful agencies would rather keep secret. Remove the promise of anonymity, the argument goes, and the threat of retaliation will silence many who would otherwise leak things that the public should know. Therefore, a promise to protect a source's identity should trump the desire of prosecutors for testimony in a legal proceeding.

Despite my flip remark about a "Get Out of Jail Free" card, I endorse that argument. I am, in fact, very near an absolutist on it: I would say that the only conditions under which I could accept a reporter's testimony being forced is if prosecutors could prove - not just "assert" or "declare" or "certify" but prove - that there is literally no other way certain information about a serious crime can be secured and no way the case can proceed without it. (Yes, obviously we quickly get into murky waters regarding who would be considered a journalist under such a doctrine - not to mention the always-present question of the patent failure of the mainstream media to live up to its obligations to inform - but we're talking base principles here, not devil-housing details.)

Not everyone agreed, of course. Some contrary commentaries were sober, but some were some silly. One of the silliest, in my opinion, was found at LiberalOasis, which called the "twisted logic" of the reporters' supporters "appalling." The nub of their argument is that a crime has been committed and because the prosecutor says their testimony is needed, they should feel obligated to cooperate.

Now, the idea that their testimony is actually necessary is based on nothing but the prosecutor's say-so, which is certainly not something I would want to rely on, but that doesn't matter, LO seems to say: There was a crime and they should cooperate because, well, because they should.

And the risks of cooperation to future reporting and the public's right to know? None whatsoever! First off, LO insists, the public's right to know lies here not in revealing what the government would keep secret but in revealing what the government wants to know. Furthermore,

[m]edia types are arguing that to give up the leaker will mean that future whistleblowers won't trust the press to keep quiet and therefore, won't talk.

More likely, future whistleblowers are frightened at the how the media is so easily used as a tool against them, and would feel reassured to see the media join them in standing up to a corrupt government official. [emphasis in original]

Now, that is just arrant nonsense. The idea that someone - anyone - is going to say "you promised to keep their name secret and you didn't but they were a bad person so therefore I'm sure you'll protect me" is beyond ridiculous.

What's also ridiculous is that LO, which presented its case in the form of picking apart a column by William Safire, not by addressing the arguments of any actual participants in the case, ignored an important fact: Appeals to the Supreme Court to hear the appeal came not only from numerous news organizations but from 34 states,

all arguing that confidentiality is important in news gathering. ...

Every state but Wyoming recognizes reporters' rights to protect their confidential sources of information, justices were told in a brief filed on behalf of 34 states, and without those privileges "reporters in those states would find their newsgathering abilities compromised, and citizens would find themselves far less able to make informed political, social and economic choices."

But not only didn't that matter, it wasn't even worth mentioning in an argument designed to make the situation appear as simply a self-absorbed mass media ignoring the public interest.

In fact, the whole post reeks of partisan game-playing, of the folks at LiberalOasis being eager to see Cooper and Miller cooperate not so much because a crime has been committed, but because they figure the result will be politically harmful to Bush and the Bushleaguers and they're prepared to damage the principle of journalistic confidentiality to get it. While that result would certainly be something to be welcomed, I say the price they would exact for it is too damned high.

That's especially true because there is still another point here, lost in the hoopla:

[U.S. Attorney Patrick] Fitzgerald [of Chicago] said in his own filing that the federal government is different. "Local jurisdictions do not have responsibility for investigating crimes implicating national security, and reason and experience strongly counsel against adoption of an absolute reporter's privilege in the federal courts," he said.

That is, another aspect of the case is the declaration that, yet again, "national security" trumps everything. By insisting the reporters cooperate with prosecutors, LO, doubtless inadvertently, helps to advance that idea.

Footnote: All that said, there is a way that, I believe, the reporters could have justified breaking their silence. Not to cooperate with prosecutors, not to get Bush. But I say that if you pledge to keep a source secret and later discover that your source has burned you, that they were actually using you not to get out relevant or necessary information but to advance their personal or ideological interests, that they have surrendered any claim on your continued commitment. If you pledged to keep their name quiet, then in most every case you should do exactly that. But if you find they've burned you, feel free to burn them right back. That was an option open more to Cooper in this case (who published) than Miller (who didn't), but having gone as far as they did and having made the decision to keep silent despite having been burned, it would be hard to either of them to take that course now without it looking like capitulation rather than choice, which would undo the point of doing it.