Don't tell, ask.

The law, lawyers, and the court.
Nov. 23 2005 2:31 PM

Don't Tell, Ask

Bob Woodward had no duty to disclose anything.

His silence was golden. Click image to expand.
His silence was golden

As the investigation into claims that the Bush administration leaked the identity of covert CIA operative Valerie Plame in an attempt to discredit her husband expands to include criminal charges, the Washington Post's star reporter Bob Woodward has taken center stage as the scandal's latest villain. The revelation that Woodward learned Plame's name several weeks * before anyone else has led to angry challenges to his prolonged silence and even calls for his resignation. But Bob Woodward owes no apology. His silence hasn't betrayed the nation, the Washington Post readership, or anyone else. Legally speaking, all Woodward's discretion did was force Special Prosecutor Patrick Fitzgerald to do his job. The real discussion here shouldn't be about why Woodward didn't come forward; it should be about why Fitzgerald didn't call.

In maintaining his silence, Woodward, more than anyone else in the Plamegate scandal, has upheld the highest standards of journalistic integrity and discretion. Perhaps this is because, more than anyone else, Woodward understands the tenuous and often strained relationship between a powerful government and its citizens. (Whether Woodward—who has made his career as a journalistic watchdog, attentively patrolling executive power run amok—had some special obligation to his editor is a different question.) Woodward's critics are essentially arguing that he should have volunteered information (whether directly to the prosecutor or functionally to the prosecutor via publication) before being asked—that is, he should have become an informant.

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We have laws in this country that designate precisely when citizens are required to rat on other people. The laws, for instance, require doctors who witness injuries consistent with child sex abuse to call authorities; and social workers are obligated to snitch if they confront someone clearly about to physically harm another. Certain other professionals are also deemed by law to be "mandatory reporters." But outside these narrow confines, there is no law in our country imposing an obligation to begin or to assist in a criminal prosecution—not in drug cases, not in mob cases, not even in murder cases.

And rightly so. America has been through McCarthyism before, and we have seen what a culture of informants can produce.

In America, it is the prosecutor's job to get information, not the citizen's to volunteer it—and this is for good reason. Many of our other important values—such as journalistic integrity, the right to privacy, or the right to be free from unwarranted searches and seizures—compete directly with an obligation to volunteer information. The value of our freedom from governmental authority is invariably tested during troubled times and generally faces its greatest challenges in the context of highly charged issues. But although it is chic to be patriotic, particularly in wartime, a vogue for cooperation with prosecutors shouldn't be confused with good policy. It is true that we prize honesty and integrity in America, and certainly we expect those summoned before a tribunal to testify completely and truthfully, but this is only required when someone is questioned by federal agents or compelled to testify. We may be a nation of Honest Abes, but we are not a nation of snitches.

It is precisely because we so long ago made the determination that people needn't (absent some very good reason) cooperate with the government against their fellow citizens that prosecutors are given a corresponding weapon of almost staggering power: the subpoena. By simply writing someone's name on a slip of paper, a U.S. attorney can haul a person into court and ask questions about anything he or she deems remotely relevant to an investigation. A prosecutor can paw through your library records, credit card receipts, and phone records; seize computer data; depose your secretaries and functionaries; procure driving records; and generally root through the most intimate details of your life in picayune detail. In exchange for this, we, as citizens, are relieved of the obligation to tattle to others indiscriminately.

All prosecutors have this power, and prosecutors leading wide and nebulous grand-jury investigations have even more of it. They are allowed to obtain documents and compel testimony with minimal oversight and with almost no limitation. Like any ordinary citizen, Bob Woodward was wise to fear that power. Special Prosecutor Patrick Fitzgerald, had, after all, already used it widely—demanding testimony from dozens of government officials and journalists, leading to the Matthew Cooper crisis and including the incarceration of Judith Miller. By acting as he did, Woodward implicitly took the position that confidentiality, journalistic integrity, and privacy trump the need to make a prosecutor's job easier.

Sadly, in the current political climate, those values aren't getting the respect they deserve. Woodward had sources to protect and every reason to avoid being subpoenaed. Moreover, he had no legal reason to step forward, when Fitzgerald could readily have called him and demanded truthful answers. As Woodward correctly divined, his only option was to lay low and to remain completely discreet. The fact that Woodward did just that, and did it successfully for so long, should be a beacon of hope, not a cause for condemnation.

Given the administration's outrageous conduct in leaking Plame's name, and allowing for Woodward's special place in the pantheon of modern journalism, it is easy to feel betrayed both by his silence and by his seemingly unnecessary public pronouncements. But make no mistake about it: Patrick Fitzgerald is a tenacious prosecutor. He found Judith Miller despite the fact that she (unlike Matthew Cooper) hadn't gone public with what she'd been leaked; he found creative ways to pressure potential targets and witnesses into signing confidentiality waivers, and when that didn't work, he showed no compunction about jailing journalists, all in the pursuit of the information he wanted. Fitzgerald had all the power here. The failure was his—not Woodward's.

For Woodward, publishing what he knew was likely to buy him a one-way ticket to a jail cell. Whether or not we might have wanted him to bite that bullet, go public, and languish in jail, it is crucial to remember that without stronger laws in place to protect sources and with no legal authority compelling him to come forward, for Woodward as for most everyone, discretion really was the better part of valor.

Correction, Nov. 27, 2005: The article originally indicated that Woodward had learned Plame's name several months before anyone else, as opposed to several weeks. Click here  to return to the corrected sentence.

David Feige is a television writer and the author of Indefensible. He spent 15 years as a public defender and served as the first trial chief of the Bronx Defenders.