Special counsels are meant to eliminate potential conflicts of interest in government in often high profile investigations. But all too often these days, these appointments result in expensive, mischievous exercises that threaten to erode our basic freedoms. That is exactly what is occurring in the drawn out inquiry into who is guilty of uncovering a covert CIA agent.

As most everyone knows, Valerie Plame was outed as a spy in contravention of an obscure, misguided and highly controversial 1982 law meant to stop that sort of thing even at the risk of criminalizing free speech. Until now there has been only one prosecution under the law and that was back in 1985. But in the strum und drang of 9/11 and a presidential election campaign, Plame’s unveiling by a syndicated columnist became too hot to let go.

The leak to the columnist apparently came from the White House and was viewed as retribution for Plame’s husband, Joseph Wilson, having found no evidence to support the administration’s allegation that Saddam Hussein sought to buy nuclear material in Africa. It seems Plame had recommended the former ambassador for the assignment, a fact that hadn’t been previously revealed.

Now a federal appeals court has upheld a lower court contempt citation against two reporters who have refused to reveal their sources despite the fact they never used the information to write stories as did the syndicated columnist, and unless the Supreme Court steps into this blatant constitutional encroachment, the reporters will go to jail for contempt of court or whatever.

But the story becomes even more ludicrous. The out-of-control special prosecutor, one Patrick Fitzgerald, already knows the source of at least one of the reporters, Judith Miller of The New York Times. He doesn’t need her testimony to identify the person but only to try to compare, apparently for perjury purposes, that source’s statement to the federal grand jury with what Miller says she was told. She won’t play his dishonest game and she shouldn’t. Meanwhile, Robert Novak, the columnist who revealed Plame’s CIA role, seems to have found some sort of immunity in the whole mess. He hasn’t been threatened with anything, at least publicly.

At this juncture it would seem then that the only victims are Miller and Time magazine correspondent Matthew Cooper, who also received the information about Plame but wrote about it only after Novak had publicly disclosed it. He too faces jail time. But, of course, potentially the real victims of this nonsense are the American people who are in danger of having their access to the inner workings of their government severely curtailed.

Here is what Bruce Sanford, one of the nation’s leading First Amendment attorneys and a recognized expert on press freedom, recently told a Syracuse University audience about the case: “Without reporters being able to have confidential communications with those in power, the public cannot expect to receive information about what really is going on in government.”

In calling for a national shield law to protect reporters and their confidential sources (two bills to do this are pending in Congress) as is the case in 31 states and the District of Columbia, Sanford added: “Having succeeded at last at making conversations with reporters a potential criminal activity, our new generation of ever relentless, tunnel vision prosecutors will have handed over to every White House and every state and local executive a new valuable threat to government employees”

There certainly are instances when reporters can’t hide behind their First Amendment privileges, times when they must be citizens first and reporters second. Viewing a crime under confidential circumstances can be tricky business. One can’t witness the systematic destruction with drugs of a little boy as was purported (albeit untruthfully) in an infamous case involving a reporter for a newspaper here and claim constitutional protection from revealing the child’s identity and location as that newspaper shamefully did.

But the instant case is a far cry from that. If left to stand, as Sanford and others have properly stated, it becomes a dangerous precedent with which to undermine the people’s right to know. The 1982 law that began all this was itself mischievous and wrong headed and never succeeded in nailing the person at whom it was directed, former CIA officer Philip Agee, for revealing CIA operatives. Now with a mischievous special prosecutor aiming at the messengers, it might just have done what everyone feared _ undercut our basic rights.

Maybe Miller said it best, noting that evidence was submitted to the appeals court that neither she nor her attorney was allowed to see: “I risk going to jail for a story I didn’t write, for reasons a court won’t explain.”

(Dan K. Thomasson is former editor of the Scripps Howard News Service.)