Posted on: Monday, October 11, 2004

EDITORIAL
Leak probe threatens reporters' privilege

A judge's contempt order threatening up to 18 months in jail for a New York Times reporter is a chilling wrong turn in an inquiry into who leaked the name of a covert CIA agent.

We expected special prosecutor Patrick Fitzgerald to be particularly vigorous in pursing this investigation, because it's a felony to disclose an agent's identity.

We're also tangentially interested because of abundant indications the leak came from one or more appointees in the Bush administration.

The investigation stems from a complaint by the CIA agent's husband, who argues that the leak was political payback for his part in discrediting White House claims that Iraq was seeking uranium in Africa.

The leak was published by columnist Robert Novak. Other reporters apparently received the leak but elected not to publish the information. It's not known whether Fitzgerald has subpoenaed Novak to find out who the leakers were, but he has gone after the other reporters with fearsome determination.

A consequence, intended or not, is that the investigation may intimidate reporters from going after national security stories, while saving the leakers from being unmasked, at least until after the election.

The Times reporter threatened with jail, Judith Miller, says she is deeply reluctant to divulge confidential sources, even if they permitted her to do so, because they may have relinquished their confidentiality under fear of discipline.

But Fairness & Accuracy in Reporting, a leading journalism organization, says protection of sources is "a journalistic right that should be recognized by the courts, but only when it protects genuine whistle-blowers, not when it shields government wrongdoing."

Unfortunately, the prosecutor appears to be pursuing innocent reporters whom the wrongdoers attempted to use, rather than the wrongdoers themselves. If Fitzgerald's only way to find them truly is by squeezing reporters, why doesn't he squeeze Novak, who in a sense is a party to the crime, first?

The end result, we fear, is a growing precedent by which prosecutors can wipe out a reporter's pledge of confidentiality, either to conduct fishing expeditions, or to intimidate reporters in their necessary work.