Special justice for right-wing columnists

Robert Novak irresponsibly outed an undercover CIA agent, possibly in violation of U.S. law. Under Ashcroft's Justice Department, he'll get away with it -- unlike so many journalists who have rotted in jail.

Published October 11, 2003 12:11AM (EDT)

Early in 1978, I was given the names of three CIA agents operating out of a Bechtel Corp. field office in Libya -- not a government leak, but a corporate leak. I decided immediately not to reveal the identity of the agents. They would almost certainly have been killed. Besides, they weren't the story. The story was that an American construction company was providing shelter for spies while building a pipeline in a Muslim country. "Husbanding operatives" was the functional term.

Five years later, on another story about Bechtel, I did receive a government leak, this one about the suspected illegal activities of two former officers of the company, George Shultz and Caspar Weinberger, at the time secretary of state and secretary of defense in the Reagan administration. In that instance, I traded information with FBI agents investigating Bechtel's bribery of South Korean officials. This time I withheld source names.

Now I am watching Robert Novak, CNN pundit and syndicated columnist who, like myself, protects his sources, but unlike any responsible journalist I know has unnecessarily revealed the identity and endangered the life of an intelligence operative.

In the years that followed my Bechtel investigations, I also watched scores of my colleagues in journalism being subpoenaed, found in contempt, at times arrested and even jailed for refusing to reveal their sources. I wondered if my number would ever come up. In case it did, I carefully redacted my notes with a razor blade and burned two taped interviews. Now I wonder if Novak has taken similar precautions.

Almost 20 years have passed and I appear to have escaped the fate of reporter Erin Hallissy, then of the Contra Costa Times in California, who was found in contempt of court for refusing to release her interview with a death row inmate, and of my friend Bill Farr, a Los Angeles Times reporter who rotted in county jail for refusing to testify in the Sharon Tate murder case, or Tim Crews, editor of the Sacramento Valley Mirror who served jail time in 2001 rather than tell a judge the names of two confidential sources on a local police scandal, or David Kidwell, a Miami Herald reporter found in criminal contempt and sentenced to 70 days for refusing to testify about a jailhouse interview. And those cases were in states with relatively strong "Shields Laws" enacted to protect reporters from such pressure. It's been happening all over the country, in every state.

In July 2001, freelance book author Vanessa Leggett knew she would be badgered by a Houston grand jury to testify and identify a key source. She refused to appear, and was jailed for 168 days, released only because the grand jury's term expired. In 1999, the Reporters' Committee for Freedom of the Press surveyed American media to determine how pervasive judicial harassment of reporters and editors really was. Forty-six percent of respondents said they had received at least one subpoena that year; a total of 1,326 were served to 440 organizations by local, state and federal justice officials.

So naturally I wonder whether Robert Novak will ever be subpoenaed or arrested and ordered to reveal the source of his recent leak, or tried under the Intelligence Identity Protection Act of 1982 for exposing the name and whereabouts of an active CIA agent. And I wonder, if it had been myself or Seymour Hersh or Lowell Bergman who had received and published Valerie Plame's identity, whether one of us would be writing this from a federal holding cell in Virginia while John Ashcroft waited for us to sing.

There is a risk, I know, in pushing too hard for equal justice on this matter; in fact the risk is greater than ever that the federal government may decide to stop all leaking, classified or unclassified, in the cause of national security. It's happened before. Remember Nixon's White House plumbers, assigned to plug all leaks embarrassing to the presidency? Add to that tendency the recently enacted Patriot Act and the soon-to-be-implemented "Sensitive Homeland Security Information" regulations and you have the makings of a heavily gagged press corps. Not bad news for everyone, but certainly for investigative reporters.

Leaks are our lifeblood, and sources are about the only thing we won't burn to get a story that is vital to public safety or understanding. No one knows that better than Scott Armstrong, founder of the National Security Archive and now director of the Information Trust in Washington. Armstrong worries "that this cry to find the Plame story source will become an excuse for the Justice Department to change practices, to begin the aggressive pursuit of journalists including their phone and travel records, notes, etc., or, even worse, to ask Congress for an Official Secrets Act." And he adds this thought about Novak and the rest of us: "Some journalists think Novak is a pig, and Novak probably thinks they are pigs too, but I'd hate to give up the sanctity of our collective sty."

It's unlikely that Novak, a reliable stenographer for several Republican administrations, will have his door smashed in by John Ashcroft. The aggressive search for the leaker promised by Bush will undoubtedly leave this loyal pundit safe in his comfortable office, where he can wonder in private whether he has placed Valerie Plame at risk for her life.

By Mark Dowie

Mark Dowie's investigations of other issues have received four National Magazine Awards. He is based in Pt. Reyes Station, Calif.

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