The Underprivileged Press - New York Times

The Underprivileged Press - New York TimesThe Underprivileged Press

By BOB DOLE
Published: August 16, 2005

Washington

LIKE many Americans, I am perplexed by the federal investigation into the alleged leak of classified information that exposed Valerie Plame Wilson, the wife of Joseph C. Wilson IV, a former ambassador, as a Central Intelligence Agency officer. So far the special prosecutor, Patrick J. Fitzgerald, has achieved one notable result: putting a New York Times reporter, Judith Miller, in jail for refusing to break her promise of confidentiality to her sources in response to a grand jury subpoena. The incarceration of Ms. Miller is all the more baffling because she has never written a word about the C.I.A. flap.

If state rather than federal authorities were conducting this investigation, Ms. Miller most likely would not be in jail. Today 49 states and the District of Columbia recognize a "reporter's privilege," either by statute or through state judicial decisions, which allows journalists to report information and protect confidential sources without fear of imprisonment.

Unfortunately, at the federal level the legal landscape is much less clear. In 1972, the Supreme Court held that reporters do not have an absolute privilege to protect their sources from prosecutors. And various federal appeals courts have developed inconsistent standards on how and when such a privilege may apply.

Congress can help rectify this situation by passing a bill introduced by Senator Richard G. Lugar and Representative Mike Pence, both Indiana Republicans, that sets clear standards the federal government must meet before it issues a subpoena to a reporter in a criminal or civil case. For example, in a criminal investigation, a reporter would be required to turn over confidential information only if a court determined that there are reasonable grounds to believe a crime has been committed, that the requested information is essential to the investigation and that it could not be obtained from nonmedia sources. This is hardly a free pass for journalists; importantly, the bill specifically authorizes the forced disclosure of a source's identity if doing so is necessary to prevent imminent and actual harm to national security.

As someone with a long record of government service, I must admit that I did not always appreciate the inquisitive nature of the press. But I do understand that the purpose of a reporter's privilege is not to somehow elevate journalists above other segments of society. Instead, it is designed to help guarantee that the public continues to be well informed.

Of course, some critics will contend that protecting the news media along the lines of the Lugar-Pence bill would make it harder to prosecute crimes because of the potential loss of relevant evidence. But this argument ignores the dozens of whistle-blowers who would not share information about government wrongdoing with the press unless they felt reporters could protect their identities. This is why the attorneys general of 34 states filed an amicus brief in May asking the Supreme Court to recognize a federal reporter's privilege.

I am also greatly concerned about Judith Miller's situation because she has been incarcerated as a result of an investigation into possible violations of the Intelligence Identities Protection Act of 1982, of which I was a sponsor. The law was intended to protect covert intelligence operatives whose lives would be endangered if their identities were publicly disclosed. We were particularly concerned about people like the notorious Philip Agee, a former C.I.A. officer who systematically exposed the agency's covert operatives.

Thus the act was drafted in very narrow terms: our goal was to criminalize only those disclosures that clearly represented a conscious and pernicious effort to identify and expose agents with the intent to impair America's foreign intelligence activities. Not surprisingly, there has been only one prosecution under the act since it was passed.

With the facts known publicly today regarding the Plame case, it is difficult to see how a violation of the Intelligence Identities Protection Act could have occurred. For example, one of the requirements is that the federal government must be taking "affirmative measures" to conceal the agent's intelligence relationship with the United States. Yet we now know that Ms. Wilson held a desk job at C.I.A. headquarters and could be seen traveling to and from work. The journalist Robert D. Novak, whose July 14, 2003, column mentioned Ms. Wilson, using her maiden name, and set off the investigation, has written that C.I.A. officials confirmed to him over the telephone that she was an employee before he wrote his column.

I, of course, do not know what evidence Mr. Fitzgerald has presented to the grand jury, nor will I hazard a guess as to the final outcome of his investigation. But the imprisonment of Judith Miller will be even more troubling if it turns out that no violation of the Intelligence Identities Protection Act has occurred. As she sits in jail, Congress can honor her commitment to principle and her courage, and that of all reporters who have helped expose wrongdoing by protecting their sources, by passing the Lugar-Pence bill and creating a federal privilege for reporters.

Bob Dole, the Republican candidate for president in 1996, was a senator from 1969 to 1996.