If President Richard Nixon had had someone as hard-nosed as Patrick J. Fitzgerald working for him in the early '70s, he could have stopped the Watergate investigation in its tracks. Fitzgerald isn't a common thug like G. Gordon Liddy or H.R. Haldeman. He's the U.S. attorney in Chicago who was appointed special prosecutor at the end of 2003 to investigate charges that government officials had violated the Intelligence Identities Protection Act of 1982 by disclosing the identity of covert CIA agent Valerie Plame.
Fitzgerald has become the bête noire of Washington journalism for subpoenaing a path through newsrooms, commanding Matt Cooper (Time), Tim Russert (NBC News), Walter Pincus (Washington Post), and Judith Miller (New York Times) to appear before grand juries to testify about their confidential sources with regard to Plame.
Federal judge Thomas F. Hogan promised Cooper a contempt citation that would send him to jail for up to 18 months if he did not talk. Ultimately, Cooper, Russert, and Pincus gave depositions in which they talked about a single anonymous source, I. Lewis "Scooter" Libby, who had waived his confidentiality agreement with the reporters, according to the New York Times. Yesterday, Hogan ruled that Miller must testify about her confidential sources. The judge has yet to issue an "or else" ultimatum to Miller about sending her to jail.
Nixon, who hated everybody but hated journalists the most, would have been delighted by the current tableau in which administration officials purportedly committed a crime but reporters covering the story were threatened with jail first.
Of course, incarceration wasn't the first thought that came to the Nixon White House when nosy journalists needed neutralizing. Mark Feldstein wrote in the January/February 2000 Washington Monthlythat Nixon aide Jeb Magruder once mentioned to Liddy that the president was fed up with the leak-driven journalism of muckraker Jack Anderson and "would sure like to get rid of that guy." Liddy took Magruder at his word, meeting with a CIA operative to explore such options as dosing Anderson with LSD, poisoning him, or killing him in a staged mugging. One nonlethal measure considered was planting evidence that Anderson was gay.
The Fitzgerald investigation was instigated by a July 2003 column by Robert Novak, which reported that administration sources had told him that Plame, wife of diplomat Joseph C. Wilson, was a CIA "agency operative." If any law was broken in the Plame case, the guilty parties were Novak's administration sources, not Novak. The Intelligence Identities Protection Act focuses on government officials who have access to classified information and who knowingly reveal the agent's covert identity while the government is "taking affirmative measures" to protect that identity.
The law applies to journalists only if they deliberately and repeatedly unmask covert agents with the intent to disrupt U.S. intelligence efforts—Philip Agee-style—which nobody has accused Miller and her fellow subpoenaites of doing. The framers of the Intelligence Identities Protection Act were deliberate in protecting journalists who might, from time to time, report the identity of a covert agent because they wanted to avoid creating an American version of Britain's Official Secrets Act. The Official Secrets Act criminalizes the flow of secret information to the press and is used by the British government there as a bludgeon to keep journalists from writing about a whole array of state issues.
So while the language of the Intelligence Identities Protection Act shields journalists, an overly ambitious prosecutor—like Fitzgerald—can still turn it into an Official Secrets Act of a sort. By making it illegal to name covert agents, the law authorizes a criminal investigation whenever names leak out. And whenever a criminal investigation is warranted, a grand jury can be impaneled, and journalists who might know something about the leaks can be called as witnesses to testify in the name of justice. The journalist need never have written about the covert names to qualify for a grand jury subpoena, as Judith Miller of the Times has learned.
Patrick Fitzgerald's aggressive investigation of the Plame incident has rekindled the debate about what sort of legal privilege, if any, journalists should have to protect them from compelled disclosure of names, unpublished copy, phone logs, and other reported material. Courts have largely interpreted Branzburg v. Hayes, the 1972 Supreme Court decision about journalist privilege, to find a limited privilege for reporters. But last year's unanimous 7th Circuit decision in McKevitt v. Pallasch, written by Judge Richard Posner, has emboldened judges like Hogan to order reporters to speak.
The Plame case and the Watergate scandal aren't directly analogous, of course, but imagine how efficiently Richard Nixon could have ended the investigation by Bob Woodward and Carl Bernstein into the break-in and coverup had his Justice Department had such a legal tool in its black bag. He could have shut down Woodward and Bernstein's investigation by using some allied criminal case as a pretext for subpoenaing them to name their anonymous sources. Neither reporter would have talked, but neither reporter would have been able to do much work from a jail cell. Just hinting that the government was thinking of subpoenaing the two reporters would have dried up their anonymous sources—and their potential anonymous sources.
I know I'm coming off like some ACLU worrywart, but there's evidence that Fitzgerald has no compunctions about using the grand jury process to intimidate reporters from digging for other national security stories, not just sensational cases like the Plame affair. Last week, Fitzgerald notified the New York Times of his intent to subpoena the telephone records of Judith Miller and her Times colleague Philip Shenon. The 9/11 report alleges that an Islamic charity in Illinois was tipped off about a government raid and potential seizure of assets by a call from Times reporters. Evidently, Fitzgerald wants to resolve that question. Or perhaps there's a statute in the U.S. Code or in the depths of the Patriot Act that criminalizes such phone conversations, and he plans on sending Miller and Shenon to Marion Federal Penitentiary.
Few people in journalism believe that reporters should be exempt from the law and should never have to answer a subpoena. But the First Amendment, the supreme law of the land, means nothing if it doesn't protect the right to gather information and publish it—or decide not to publish it. Sweeping court rulings that recognize no privilege for the press make a mockery of the First Amendment. If the press is allowed to become an extension of law enforcement, if its findings and sources are subpoenaed every time an incompetent prosecutor can't find evidence to bring a case himself, it will cease to be recognizable as the press.
Prosecutor Fitzgerald has immense legal discretion as to how he brings his case to court. He doesn't have to threaten and bully reporters. In pursuing the administration officials who purportedly violated the Intelligence Identities Protection Act, he must first take care not to violate the First Amendment.
My favorite amendment is the First. What's yours? Send e-mail to firstname.lastname@example.org. (E-mail may be quoted by name unless the writer stipulates otherwise.)