What crime, exactly?
Adam Liptak has a finely-wrought story in the Times now about the Judy Miller situation. It must have been a painful headline to see in print: New York Times Reporter Jailed For Keeping Source Secret.
Judy Miller didn't have enough of a story for the Times to publish. No one knows precisely what crime the prosecutor is investigating. And a journalist (someone that New York magazine intimates isn't liked very much) goes off to jail — charged with civil contempt — after shakily reading a statement about the importance of a free press. It's all so strange.
Someone asked tonight, “Why is she protecting whatever jerk was her source?” Reporters care a great deal about protecting all their sources, but some reporters involved in this situation have presumably talked to the prosecutor. Robert Novak. The Post's Walter Pincus. Those reporters, no doubt ably represented, appear to have made the decision that the fact that their sources may have been committing a crime by leaking the CIA agent's name vitiated their privilege not to talk about that source. Matt Cooper's source has let him talk, so he's talking.
Why is Judy Miller not taking this route? The Times staunchly says that her approach is principled. It seems to me that this is a terrible test case, and it may undermine other reporters' efforts to claim the privilege in more appropriate circumstances. I tend to think that the reporter's privilege is important — and we have other privileges that we care about as well, like the attorney-client privilege and the priest-penitent privilege, and all the rest — but these privileges are rebuttable under some circumstances. On the other hand, because we don't really know what the prosecutor is up to, it's difficult to assess the propriety of asserting the privilege in this particular context.
So — I applaud principles and privileges, but this entire morass is bound to have negative effects on an already-troubled profession. The prosecutor seems vindictive. I wish he would back off — that's the piece that seems most moveable on this particular chessboard.