You might have seen Judith Miller and Matthew Cooper on TV. They are reporters for The New York Times and Time magazine, respectively. They give every impression of being intelligent, professional and decent people, and they might well be going to prison for 18 months.
That's a tragedy for them, but for the rest of us it's an object lesson in media inanity. Miller and Cooper, who are refusing to reveal their sources in a federal investigation, have hit the talk-show circuit as anguished defenders of the First Amendment and of the media's watchdog role. They are quite sincere about that. But they would actually be going to jail partly to provide after-the-fact vindication for an absurd media feeding frenzy about a non-crime that journalists relentlessly hyped to hurt the Bush administration.
Let's back up. In February 2002, Joe Wilson was sent by the CIA to Niger to investigate allegations that Iraq was trying to acquire uranium from the African country. After the invasion of Iraq, he wrote an Op-Ed piece in The New York Times saying that his work in Niger had exploded the administration's bogus WMD claims. Wilson became a liberal and media cause celebre.
But the flap raised questions. Wilson wasn't an expert in nuclear proliferation or in Niger. He had written for left-wing magazine The Nation. In other words, not a natural fit for such a sensitive mission. Journalists wondered why he had been tapped for it. Conservative columnist Robert Novak was told by administration sources that Wilson's wife, Victoria Plame, worked at the CIA. He published her name. Other reporters, also informed about Wilson's CIA connection, did the same.
Cue the caterwauling. The media and Democrats were wracked by spasms of outrage. The Bush administration was punishing Wilson by outing his wife and putting her life at risk! It had violated a law against exposing covert agents! The scandal was Watergate, Iran-Contra and every other -gate wrapped up into one (The Atlanta Journal-Constitution said the administration's conduct came "perilously close to treason")! The administration must, must appoint a special prosecutor to investigate! Now!
Well, the press and President Bush critics got what they wanted -- good and hard. The special prosecutor in the case, U.S. Attorney Patrick Fitzgerald, has done what special prosecutors usually do, namely trample all over any sense of proportion. He has subpoenaed various journalists, including Miller and Cooper, who have refused to reveal their sources. They are now in contempt of court.
An axiom for defense lawyers goes something like: "If you can argue the law, argue the law; if you can't argue the law, argue the facts; if you can do neither, try to change the law." It is this last, usually desperate tack that has been taken by the journalists' defense, which is urging the creation of a new absolute federal privilege against journalists being forced to reveal their sources. An appeals court has already unanimously nixed this idea. A much simpler, more obvious argument is available to the defense -- that the Intelligence Identities Protection Act that was supposedly violated in this case wasn't. The act establishes an extremely high standard for a criminal violation -- the agent in question has to be undercover (Plame wasn't), and the leaker has to know she was undercover and be intentionally trying to undermine U.S. intelligence (very, very unlikely).
But the Miller/Cooper defense hasn't made this argument, probably because it would be so embarrassing. You mean to say, after months of chest-beating, the Bush administration's crime of the century wasn't even a crime? It was just a Washington flap played for all it was worth by the same news organizations now about to watch their employees go to prison over it? That's the truth that the media will go to any length to avoid. If Miller and Cooper go to jail -- I hope they don't -- they will have plenty of time to think about the hypocrisy and ridiculousness of their caterwauling colleagues.