The reporters being subpoenaed over who leaked an undercover CIA operative's name and those facing actual jail time for refusing to reveal their sources are friends of mine. Or at least they were until this column. I do not want them to go to jail.
The problem is this: Should it be illegal for a government official to reveal the identity of an undercover CIA agent? Most reasonable people, including most reporters, would probably say yes. Lives can be at stake. But for all practical purposes, such a law (which in fact we have) is unenforceable if a government official chooses to reveal the agent's identity to a journalist, and the journalist ignores a subpoena to testify about it.
One of the farcical aspects of this investigation, conducted by a special prosecutor and costing millions of dollars, is that there is no mystery. At least half a dozen prominent people know for sure who did the leaking. Just reading the newspapers, it sure seems as if everyone in Washington thinks one of the leakers is some guy in the vice president's office named Skippy, or Snapper. Or something.
"Everyone in Washington thinks" is a good enough standard for most purposes. But not for a criminal prosecution. For that, you need evidence beyond a reasonable doubt. And if the crime consists of a private conversation between two people, you need at least one of them to 'fess up. The government official is protected against self-incrimination by the 5th Amendment. If the journalist has an absolute right and an absolute duty to shield the identity of a source, both sides of the conversation are immune and prosecution is impossible.
It is certainly true that anonymous sources are a valid and important tool of journalism. It is also true that undercover agents are a valid and important tool of espionage. Journalism and espionage both serve the public interest, most of the time. Does the journalism profession really want to get into an argument about whose secrets are more important? That is the argument it is careening toward with the insistence that the legal system should allow journalists absolute protection for their sources, even if that leaves espionage with no legal protection at all.
In some ways, a reporter's agreement to guarantee anonymity to a source is a commercial contract like any other. The government enforces contracts so that people will be encouraged to make them. But some commercial contracts don't serve the public interest. Drug deals, for example. That's why you can't take your dealer to court over the kilo of cocaine he promised.
