Privilege and venality
Buried in yesterday's New York Times was a story that suggests the journalistic privilege protecting sources is crumbling -- under the weight, in part, of that newspaper's slanted reporting about nuclear scientist and alleged "Chinese spy" Wen Ho Lee. Under orders from a federal judge, Times reporters Jeff Gerth (of Whitewater notoriety) and James Risen were scheduled to give depositions on Thursday in Lee's privacy lawsuit against the U.S. government. According to the Times, both reporters had said previously that they "might not" obey the judge's instructions to reveal the sources that had provided information about Lee.
More interesting than the specific problems faced by Gerth and Risen was the article's summary of recent judicial attacks on source privilege. Aside from their potential ill effect on journalism generally, those decisions may have powerful implications for the case of CIA operative Valerie Plame, victim of anonymous Bush administration leaks.
Last August, in another case, federal appeals Judge Richard A. Posner "expressed skepticism about any special privilege for reporters." In an opinion compelling reporters to turn over recordings of their interviews with a source, Posner went on to write: "We do not see why there needs to be special criteria merely because the possessor of the documents or other evidence sought is a journalist." A Republican appointee, Posner happens to be one of the most influential conservatives on the federal bench. Another federal judge in Alabama recently ordered a Sports Illustrated reporter to name his source in a libel case involving alleged "sexual indiscretions" by a former college football coach.
The protection of sources is essential to journalism, even if lousy journalists often misuse their privilege. But it now seems that some narrowing of the privilege, at least, may be inevitable. In the Lee case, Judge Thomas Penfield Jackson wrote that "the court has some doubt that a truly worthy First Amendment interest resides in protecting the identity of government personnel who disclose to the press information that the Privacy Act says they may not reveal."
That speaks directly to the Plame case, in which administration officials told conservative columnist Robert Novak and unknown others about Plame's covert identity as a CIA operative. The venal leakers' purpose, of course, was to punish her husband, former Ambassador Joseph Wilson, for exposing Bush administration lies about Iraq. By doing so, the leakers probably violated the Intelligence Identities Act -- and may have set up circumstances under which Novak could be forced to testify, or be jailed for protecting his sources who jeopardized national security.
And if John Ashcroft's Justice Department doesn't want to go that far, perhaps agent Plame will take the opportunity to file a tort suit that forces the issue.
[3:55 p.m. PST, Dec. 19, 2003]