"My heart goes out to Judy. I told her as she left the court to stay strong," a visibly shaken Matthew Cooper said yesterday referring to Judith Miller, the New York Times reporter sentenced to jail for refusing to testify about a White House source. "I think this clearly points out the need for some kind of a national shield law. There is no federal shield law, and that is why we find ourselves here today."
And away we go.
In the weeks to come, we can be sure there will be an enormous groundswell - or at least a troposphere swell - among elite journalists demanding a federal shield law, the stated purpose of which would be to protect journalists from ever exposing their confidential sources. But the ultimate effect would be to give them blanket immunity to commit a wide array of crimes.
Don't get me wrong, I think what is happening to Judith Miller is wrong. In fact, unless Patrick Fitzgerald, the special prosecutor in charge of the Plame case, knows something none of us even suspects, he's making a terrible mistake going after journalists this way.
The law he's allegedly enforcing, the Intelligence Identities Protection Act of 1982, was almost surely not broken when Valerie Plame's identity was revealed by Bob Novak two years ago. According to numerous legal experts - including Bruce Sanford and Victoria Toensing, who helped write the law - the facts don't fit the requirements of the law. Valerie Plame wasn't a covert field operative, the leaker(s) in all likelihood didn't have the required provable intent to put her life in jeopardy (and even if they did, how do you prove that?), and her life wasn't really put in jeopardy. So, again, unless there's a lot more to the story that we don't know, Fitzgerald's making a big mistake.
However, simply because he's wrong in practice doesn't mean he's wrong in principle.
Look at it this way. Imagine a situation that does conform to the conspiracy theorists' version of reality. Imagine a White House staffer deliberately leaked the identity of a CIA operative as political payback, fully knowing that it would in all likelihood result in that operative's death.
That should be against the law, right?
It should be illegal for a White House staffer to essentially put out a hit-by-proxy on any American citizen, never mind a CIA operative. That should be against the law for a butcher, a baker and a candlestick maker, too.
And it should be against the law for a journalist to do it.
And, just to be clear, it should be against the law for any of these people to help someone else do it.