Home of the Subpoenaed

Must the amber fields of liberty be watered with the blood of journalists? We say no, and we hope that a higher court swiftly overrules the panel of the Washington D.C. Court of Appeals, which refused to quash the subpoenas of Judith Miller and Matthew Cooper. What is at stake is not the livelihoods of two reporters, or even the success of a marginally important probe into Bush administration leaks, but the continued strength of the free press as an American institution.

Over a year and a half ago, Bush administration officials leaked the identity of a Central Intelligence Agency (CIA) operative, Valerie Plame, to certain journalists to punish her husband for undermining the already spotty rationale for the war in Iraq. On July 14, 2003, the conservative columnist Robert Novak revealed Plame’s profession, citing unnamed sources in the Bush administration. At this point Matthew Cooper of Time and Judith Miller of The New York Times gathered material for stories about the Plame scandal. Cooper testified about one source—Dick Cheney’s chief of staff (who released Cooper from his confidentiality obligations)—and then was subpoenaed a second time to testify about other confidential sources. Miller, who never wrote a story, was also served with a subpoena seeking information about her sources. Both refused to testify, and they and their media outlets have since carried out a court battle against the subpoenas.

If the precedent set by the appeals court last week stands, Americans will live in a different country. Americans’ faith in the press is based on the belief that, in the end, a vigorous press is worth innumerable instances of scurrilous, damaging news stories. In an age when many accuse the press of being too tame, too unwilling to challenge power or slaughter sacred cows, Americans must remember this central tenet in the never-ending battle between the press and its enemies.

Judge David Tatel hinted at the nature of this case when he wrote that he might have granted the reporter’s request, had the leak been “less harmful to national security or more vital to public debate.” Surely prosecutors will not decide what leaks meet this standard, and hopefully judges will not, either. To say that freedom of the press exists ad hoc, in cases that meet some mutable standard of harmlessness and vitality, is to say that it does not exist at all. Any damning exposé of government policy could potentially be harmful to national security, and it would take a man many lifetimes to discover what is and is not vital to public debate.

If this ruling holds, journalists will not be able to solicit information from confidential sources, particularly government sources, without the threat of imprisonment lingering over their brows. While they stand strong now, Cooper and Miller might not have done any research at all if they had known what a mess they were getting into. Even if a few journalists were still brave enough to take the risk and seek out confidential sources, far fewer government officials would give information if they suspected that only the personal heroism of the reporter lay between themselves and retaliation. We encourage the reader to imagine what America would have been like for the past two hundred years if journalists had neither sought nor received information that incriminated the source.

We acknowledge that the panel which handed down this ruling was bound by previous precedent, in particular a 1972 case, Branzburg v. Hayes, in which a reporter witnessed two individuals “synthesizing hashish from marihuana [sic].” We are no legal experts, but both Branzburg, and the two cases the Court cited in its decision to deny Branzburg his petition to quash a subpoena, involved a reporter offering confidentiality in order to observe criminal acts. Irrespective of the propriety of this precedent, the cases seem to be utterly and completely different; Cooper and Miller were gathering facts on a crime that had already occurred, a crime that in the first place was the leaking of information to journalists.

The freedom of the press must be preserved. We hope that the judiciary will forbid this type of coercive restriction on press freedom, but if it does not we beseech the Justice Department not to exercise its full powers. If every undercover agent of the CIA was slain by our nation’s enemies, it would not be so grievous a blow to America as the precedent that is being set in this case. Intelligence, America can do without. We wish the CIA luck, but even where it fails disastrously America will pull through. When the press is muzzled, America’s inner machinery will fail.