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Wednesday, February 23, 2005

WSJ Gets It Right on Plame Affair Outrage but Blows it on Bloggers and Shield Law

Judith Miller of The New York Times and Time's Matthew Cooper face the prospect of having to serve jail terms because they refuse to answer Special Prosecutor Patrick Fitzgerald's invidious questions about their supposed contacts with figures allegedly connected to columnist Robert Novak and the Valerie Plame affair.

Shield laws that protect journalists from having to reveal confidential sources have been approved in 31 states but there is not yet such federal law. Representatives Mike Pence, R-IN, and Rick Boucher, D-VA, have introduced a federal shield law proposal but it faces a long road before it ever approaches President Bush's desk for signature.

Fitzgerald's pressure on Miller and Cooper has been the focus of earlier comment in this space, which you can read here. Then check out The Wall Street Journal's editorial page today for an excellent summary of why Fitzgerald should never have been retained to ask any journalists about their sources.

Here's the Journal's concise statement of why Fitzgerald should never have been appointed:

"In fact, it is almost certainly not a crime. That statute was intended to stop the treasonous betrayal of secret agents in the field by the likes of the notorious Philip Agee, and it requires a prosecutor to show that the discloser identified a "covert agent" knowing that the agent had been undercover in a foreign country within the last five years.
"For an official who had no such knowledge, the law also requires that the prosecutor show a pattern of exposing agents.
"It's far-fetched to believe that Mr. Novak's sources were culpable under any of these terms. Ms. Plame was safely ensconced at CIA's Langley headquarters, and if anything her husband was the one who first compromised her when he went public with accusations about the CIA consulting job that she had recommended him for.

"Once Mr. Wilson made himself part of a political campaign against the Bush Administration and the Iraq War, his wife's role was bound to become public."

The Journal nails it on this count, but then comes this paragraph, which frankly reads almost like an after-thought. Some might even construe it as a cheap shot at the Blogosphere:

"Some of our media friends are also pushing a federal shield law, and one has been introduced in the House and Senate. A large question, however, is who will be shielded. The Reporters Committee for Freedom of the Press wants to protect not just reporters from established news organizations but everyone who writes anything, which means that almost anyone with a laptop and a Web site could claim to be protected from having to provide grand jury testimony. This Congress will never pass such an expansive shield, and we aren't sure it should."

I suspect the Journal's editorial writer had bloggers in mind when this graph was penned. Bloggers certainly meet the the definition of "almost anyone with a laptop and a Web site." It's true, too, that no Congress is going to approve legislation that hands anybody a blanket exemption from the judicial process. That is a straw man because there is no reason why a federal shield law must necessarily amount to such an exemption. And neither do shield laws that protect confidentiality for people like doctors, members of the clergy and attorneys.

There is a serious case against a federal shield law to be considered, however, and you will find it on the National Center Blog where Amy Ridenour makes a solid case that it is unwise for the federal government to get into the business of defining who is and who is not a "journalist."

I am not convinced that a federal shield law is not a good idea, but I recognize the cogency of Amy's critique. What is disappointing in this is the fact that for many years, I have depended upon the Journal's editorial pages as a dependable source of most logical and factual analysis and commentary. The graph quoted above simply was not up to the Journal's usual standards.