An Exchange on Reporters and Their Confidential Sources

But there is still a problem. The case at hand involves the illegal exposure of an undercover CIA agent. If this doesn't trump the journalist's privilege, what will? And yet the press is giving this case the full Floyd Abrams Big Constitutional Deal treatment. I agree that the privilege will not be worth much if it doesn't apply whenever breaking some law is at stake. There are too many laws, and it's too easy to pass more. But this is a law Keller, Sulzberger and I all approve of.

Furthermore, the crime is a secret conversation between two people, one a journalist and the other the target of a criminal investigation. Because the illegal leaker will have a right against self-incrimination, a journalist's right not to testify will often make such a prosecution impossible.

Keller suggests that I am wallowing in theory while he is dealing with the real world. As a description of our jobs, that's probably true. But this is the point in the argument where he seems "weirdly detached from the real world."

He says that neither he nor I knows whether the leaker of Valerie Plame's name was an institutional spinner or a courageous whistle-blower. Please. Under what imaginable scenario could it have been a whistle-blower?

It's not clear where Keller, as a non-absolutist, would draw the line. He thinks that a judge should have to determine that the information at stake is crucial and can't be obtained any other way. Is that all? The investigation into the leak might well meet that test. If a judge rules that it has, will he tell Judy Miller to go ahead and betray her sources?

As Keller says, prosecutors should not have absolute discretion to decide which confidential sources are benign and which are malignant. But journalists shouldn't have absolute discretion either. We need rules. Fleshing the rules out in advance is the best way to keep journalists out of jail for trying to keep promises they shouldn't have made. But those rules will have to bite harder than most journalists are currently willing to contemplate.