Where’s the Crime?

So how did this pointless CIA leak investigation get so far afield?

This week a three-judge federal appeals panel ruled that reporters Matt Cooper of Time and Judith Miller of The New York Times must divulge their confidential conversations with government sources or do up to 18 months in jail.

The slow-moving probe is intended to find who in the Bush administration disclosed that the wife of an administration critic was a CIA agent. Miller did some reporting on the disclosure but never wrote about it and Cooper wrote about it only after columnist Robert Novak published the original leak.

Once that disclosure had been made the story was fair game, in the public domain, and Cooper and Miller were only doing what reporters do.

The district and appeals courts have ruled that reporters have no special privileges under the First Amendment to refuse to testify in a criminal inquiry. However, there has been a general understanding with the Justice Department that reporters will not be forced to testify unless the information is vital to the inquiry and it cannot be obtained in any other way. Even then, there is a balance of competing interests: Whether the free flow of information outweighs the chilling effect of overriding confidentiality.

The leak of Valerie Plame’s occupation in the summer of 2003 meets neither test. The two reporters plan to appeal to the full circuit and, if that doesn’t work, to the Supreme Court.

While the appeal is under way, some court should order special prosecutor Patrick Fitzgerald to say what, if any, crime has been committed here. Very likely, there is none. Top Washington lawyers have argued compellingly that the law that seems to apply, the Intelligence Identities Protection Act, does not. What occurred may have been embarrassing, inconvenient, unfair, dirty politics, whatever, but it was not a crime.

The solution to this problem is a federal shield law codifying the traditional guidelines and understandings governing relations between press and prosecution. One is in the works, but even assuming the bill passes, it will come too late to help Cooper and Miller.

To make this whole case even more unsettling, Fitzgerald submitted secret evidence to the court that Cooper, Miller and their lawyers were not allowed to see. Miller neatly summed up the unfairness of this whole probe when she told her newspaper, “I risk going to jail for a story I didn’t write, for reasons a court won’t explain.”

That is your basic chilling effect.

(Contact Dale McFeatters at McFeattersD(at)SHNS.com)