THE SUPREME COURT'S decision not to consider the cases of reporters Judith Miller and Matt Cooper is disappointing. Both now face jail time for refusing to testify before a grand jury in the investigation into the leaking of Valerie Plame's identity as a CIA agent.
From the start, this has been a difficult and troubled case. Typically, reporters protect the anonymity of whistleblowers or people who have provided them with useful information that someone else, in a position of power, doesn't want to see published. Here, the act of telling was the crime itself, the crime under investigation. It is illegal to identify CIA operatives, and it is evident that Ms. Plame was outed by someone in the Bush administration as retaliation for her husband's debunking of claims that Iraq tried to purchase uranium in Niger.
Moreover, the leak found its way into print not through Ms. Miller, of the New York Times, or Mr. Cooper, of Time, but through columnist Robert Novak. Yet neither the leaker nor Mr. Novak is heading to jail at the moment.
Lawyers for Time, in fact, suggest that the special prosecutor may have determined that no law was broken in the original leak, but is now pursuing the two reporters in hopes of snaring someone in a perjury case. That would be too zealous by half.
The federal courts have recognized a common-law privilege for reporters, on the idea that the public good is often served when people in or out of government know they can turn over significant information to the press without being identified. It is not an absolute privilege, though - judges want to weigh the harm caused by the leak and the newsworthiness of the information.
In the Plame case, there was considerable harm - to her and to others who may have worked with her on assignments - and very little value to the news, other than as a means of getting back at her husband.
Yet the presumption should be strongly in the reporters' favor. For one thing, a promise of confidentiality has to be made in the dark - there's no way to assess the value of the proffered information beforehand.
And an especially frustrating aspect of this case is that much of the evidence - even a large section of an appellate judge's opinion - has been kept secret. There's an irony to that, since the law is coming down so hard on reporters who want to keep their secrets. And it makes it difficult to assess the government's claims that the testimony of Ms. Miller and Mr. Cooper would be so valuable as to justify forcing them to break their promises of confidentiality. In light of that, we're impelled to assume that they are in the right. The Supreme Court ducked the issue; back in the District Court, there's still time for Judge Thomas F. Hogan to set aside what looks like an ill-considered prosecutorial campaign against the two.