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Thursday, July 14, 2005 | The press is experiencing an attack of paroxysmal self-righteousness over the jailing of Judith Miller, the New York Times reporter held in contempt by a federal judge for refusing to name names. The names sought are those of Bush Administration officials known to have leaked information about a CIA agent who is the wife of whistleblower Joseph Wilson, the former ambassador.

We already know at least one of those names thanks to the long investigation by special counsel Patrick Fitzgerald: It is Karl Rove, the second most powerful man in the White House behind Dick Cheney. But according to published accounts, at least two Bush officials leaked Mrs. Wilson’s name in an attempt to punish her husband.

The Times gave a glorious example of press wrong-headedness in this matter in a full-page editorial last week praising Miller for “surrendering her liberty in defense of a greater liberty, so journalists can work on behalf of the public.” Her jailing, it said, risks “emboldening more prosecutors to trample on a free press.”

I always worry when I see the media march in near-perfect lockstep, one of the reasons we are now up to our necks in the quagmire of Iraq. But beyond that, this is poor case to stake out an absolutist position that the First Amendment confers a privilege on the press allowing it to conceal names needed in a criminal prosecution. It is an equally poor case to demand of Congress, as many editorials are doing, that a federal law be passed giving journalists immunity in such cases.

The trouble with these media arguments is easily explained: There are cases where the public interest compels the disclosure of names under penalty of contempt, and there are cases where it does not. Like so much in law, it is a question of context, and the context of the present case is that the public needs to know what happened.

Most readers know the details by now. The Bush administration, which has an enemies’ list as long as that of the Nixon administration, leaked to columnist Robert Novak information that Valerie Plame, Wilson’s wife, was a CIA “operative on weapons of mass destruction.” This was retaliation against Wilson, who had pointed out in an article in The New York Times some of the deceptions Bush used in selling its catastrophic war to the U.S. public.

Revealing the names of CIA agents – which has cost a few of them their lives – is a crime under the agents’ identity statute. The outrage, starting in the CIA itself, that followed Novak’s story compelled then-Attorney General John Ashcroft to name an investigator, picking Fitzgerald, a respected federal prosecutor in Chicago. Over the months, Fitzgerald has interviewed half of official Washington.

He’s also interviewed members of the press, including Novak and Miller and Time magazine reporter Matthew Cooper, who both wrote follow-ups to Novak’s story. When Fitzgerald ordered Miller and Cooper to reveal their sources to a Grand Jury, they refused, and a federal judge cited them for contempt. They appealed, and the Circuit Court upheld the contempt findings. They appealed to the Supreme Court, which refused to hear them. Miller has now been jailed, and Cooper has turned over his notes, which show he talked to Rove about Wilson.

Rove, whose reputation for slipperiness is the stuff of White House legend, didn’t identify Plame to Cooper by name, only as Wilson’s wife, which is the same thing. So far, the White House has taken the Fifth Amendment on Rove’s involvement.

Anyone who’s been in journalism as long as I have knows the importance of confidentiality in reporting. Governments are labyrinthine institutions, and as Americans have learned again in the Iraq adventure, can be both devious and dishonest. Without dissenters, whistleblowers and patriots willing to risk their necks to keep citizens informed, our democracy would be in sad shape.

Wilson, like Daniel Ellsberg, who leaked the Pentagon Papers and helped shed light on deceptions about another bad war, revealed the truth, and just as the Nixon administration then tried to destroy Ellsberg, Bush went after Wilson – or rather his wife. No reporter I know would ever reveal the names of patriots like Ellsberg and Wilson, acting in the national interest.

But few courts would order them to. In upholding the contempt findings against Miller and Cooper, that is, in denying in this case the media’s claim of privilege, appeals court judge David Tatel wrote that the issue was to balance “the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value.”

What the press misses in this case is the context. Novak, Miller and Cooper are not hiding the names of whistleblowers seeking to inform the public of serious government misdeeds; they are hiding the names of government officials who are seeking to punish this whistleblower and silence future ones for revealing those misdeeds.

We need to get to the bottom of this sordid affair. Novak, who wrote the original story about Plame, deserves nothing but contempt for his actions. Because of his silence, and the deal he has cut with Fitzgerald, we have the strange situation of Novak, who revealed Plame’s name, going free, while Miller, who did not reveal it (she apparently talked to Rove but hadn’t written anything yet) is in jail. One plausible explanation for Fitzgerald’s treatment of Novak is that Novak, who could be prosecuted under the agents’ identity statute, has taken the Fifth.

Those demanding blanket immunity for the media are misguided. The issue should always be the balance of public interest. The compelling point of this case is to uncover those in the Bush administration who put a CIA agent’s life at risk to punish her husband for telling the truth, and prosecute them. That is Fitzgerald’s mandate, and he deserves both public and press support.

James O. Goldsborough has written on foreign affairs for four decades, both from the United States and abroad, where he worked as a foreign correspondent for The New York Herald Tribune, International Herald Tribune, and Newsweek magazine for 14 years, reporting from more than 40 countries. Most recently, he was a columnist for The San Diego Union-Tribune.

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