Federal special prosecutor Peter Fitzgerald's glacial, year-long investigation into who leaked to columnist Robert Novak that the wife of a Bush administration critic was a covert CIA agent has yet to produce the source — or sources — of the leak.
But two reporters, Judith Miller of The New York Times and Matt Cooper of Time, are facing 18 months of jail time for refusing to divulge their sources to Fitzgerald. Neither reporter wrote about the agent and their publications reported on the disclosure only after the fact. Their connections to the actual leak are tangential at best.
That the investigation has wandered this far afield suggests that it's time for the federal government, like 31 of the states, to enact a shield law. These laws are not blanket exemptions for reporters. Generally, they require that the information prosecutors seek is vital to their case; that they have exhausted all other means of obtaining that information; and that subpoenaing a reporter is the only remaining option.
The law believed to have been violated in this case is the Agent's Identity Act, a murky piece of legislation that has been used only once in its 22-year existence. It has the fatal drawback common to laws attempting to control the flow of information in that it criminalizes certain kinds of speech.
And many attorneys believe that if Fitzgerald's probe produces any charges, they would be the prosecutor's catch-all standby, obstruction of justice. "Leaks" are not generally discrete or isolated communications. Reporters and government officials talk confidentially to each other all the time, often over years.
A government official who can be coerced into signing a waiver of confidentiality is vulnerable to an obstruction of justice charge if the reporter can also be coerced into testifying, and their recollections differ. It’s a back-door way of cowing government officials into silence.
Said respected First Amendment lawyer Bruce Sanford, "It is the public who will be impoverished if reporters cannot protect the confidentiality of their private communications with people who want to share information and insight about what is really transpiring in the corridors of government." A shield law would protect the public as well as the press.