Certain dramas are re-enacted again and again in Washington, like the Passion Play at Oberammergau. Or Groundhog Day. Or those huge Renaissance paintings on the walls of art museums. The Washington drama of the current moment involves two such familiar plot lines. Independently, they are the stuff of high seriousness. Together, they become farce.
So, imagine two giant canvases side by side. One is called "The Demand for a Special Prosecutor." It features a choir of angels in white robes. A light shining down from heaven reveals them to be editorial writers, the heads of non-profit good-government groups, and politicians of the opposition party. These angels all point an accusing finger at a figure cowering at the bottom right. This is the attorney general (generally portrayed as an animal, half-snake and half-jackass). In the background are mini-tableaux of various past scandals and present accusations.
The other canvas is called "The Reporter Protecting His Sources," and it shows columnist Robert Novak, dressed in a tunic, standing defiantly at the mouth of a cave. One hand thrusts forward in a gesture of "Halt!" The other hand squeezes his pursed lips. In the darkness behind him, we can just make out the presence of bodies—his sources—writhing in fear of exposure. In the foreground, helmeted and breast-plated soldiers prepare to cart him off to jail. (See the cart in the bottom-left-hand corner.)
As you probably know, Novak wrote last July that "two senior administration officials" had outed a woman named Valerie Plame to him as a CIA agent. The White House was furious at Plame's husband, former Ambassador Joseph Wilson, for publicly dissing President Bush's State of the Union assertion that Saddam Hussein was importing uranium from Africa. Wilson had led the investigation of the uranium question. The Bushies apparently thought it would be clever revenge to reveal that Plame had helped Wilson to get this assignment. (What kind of man lets his wife send him out for uranium?) Whoever talked to Novak either didn't consider or didn't care that revealing the name of a covert intelligence agent is against the law.
Democrats, of course, have been milking the issue. Novak, of course, says he will go to jail rather than reveal his sources. The Bush administration, of course, resisted calls for a special or independent prosecutor to investigate the leak and, of course, ultimately relented. On Tuesday, Attorney General John Ashcroft announced that he will recuse himself from the investigation. A semi-independent outside counsel will take over.
The Justice Department has already been beavering away for months on the Plame leak. There are four full-time prosecutors on the case. Their staffs have "sift[ed] through thousands of e-mails and documents." Dozens of White House officials have been interviewed. Now the independent counsel will start all over. This is costing millions of taxpayer dollars. All in pursuit of a question to which Bob Novak—a journalist whose vast output of writing and 23-hours-a-day TV schedule ordinarily leave little opportunity for the unexpressed thought or unreported factoid—has the answer. Apparently so do several other Washington journalists who were similarly approached with the Plame story, according to the Washington Post.
The attitude of all right-thinking people about these developments is accurately reflected in the New York Times editorial page. The Times greeted Ashcroft's announcement with an editorial headlined, "The Right Thing, At Last." It complained of "an egregiously long delay" and worried that "we may never know what damage" these two months of inaction may have caused.
The Times is also an ardent defender of special legal protections for journalists. (Its name is on the seminal Supreme Court ruling in this area, 1964's New York Times v. Sullivan, which gave reporters limited immunity from libel laws.) Times editorials have celebrated the expansion of these protections and deplored attempts to scale them back. A very distinguished New York Times writer once told me that if the Times ballet critic, heading home after assessing the day's offerings of pliés and glissades, happens to witness a murder on her way to the Times Square subway, she has a First Amendment right and obligation to refuse to testify about what she saw.
So, put it all together and you get: 1) the anonymity of Novak's sources must be protected at all costs for the sake of the First Amendment; and 2) the White House leakers must be exposed and punished at all costs for the sake of national security. Unfortunately for the striking of heroic postures, these two groups are the same people. Either we think they should be named, or we think they should not be named. Which is it?
It is no solution to say, as some do, that it is journalist's job to protect the identity of his or her sources and it is the government's job to expose them. This isn't a game. There is no invisible hand to guarantee that the struggle of competing forces will achieve the correct balance. Journalists ought to be concerned about national security, and government officials ought to be concerned about the First Amendment. When these interests conflict, those involved ought to have an obligation to strike the balance for themselves. Or they should have it.
The purpose of protecting the identity of leakers is to encourage future leaks. Leaks to journalists, and the fear of leaks, can be an important restraint on misbehavior by powerful institutions and people. This serves the public interest. But there is no public interest in leaks that harm national security, or leaks that violate the law, or leaks intended to harm blameless individuals. There is no reason to want more of these kinds of leaks. So, there is no reason to protect the identity of such bad-faith leakers.
From a distance, it smells as if the national security hoop-de-do about the Valerie Plame leak is exaggerated. On the other hand, the personal malevolence and Borgia-like scheming behind the leak is impressive. I'm not sure where I would come out on protecting the source of this leak. But it doesn't matter where I would come out because I don't know who the leakers were. Novak and others do know. They should either tell us who or tell us why not.