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The great cliche about contempt of court is that the...

June 28, 2005

The great cliche about contempt of court is that the wrongdoer holds the key to his or her freedom. The purpose of sending people to jail for civil contempt is not to punish them. The purpose is to induce them to do something the judge wants: usually to produce some piece of evidence. If they do as requested, they are released.

Matthew Cooper of Time magazine and Judith Miller of the New York Times say they are prepared to go to jail rather than reveal their sources to a Justice Department special prosecutor looking into White House leaks of the identity of a CIA operative, Valerie Plame. On Monday, nearly two years after Plame was outed in a column by Robert Novak, the Supreme Court declined to review a lower court ruling against Cooper and Miller. So both journalists may actually go to jail for up to 18 months.

This is no joke. But it is ridiculous.

Unlike most of our brothers and sisters on other editorial pages -- and unlike most of our colleagues in The Times' newsroom, for that matter -- this editorial page has argued against Cooper and Miller, and against the general idea of an absolute (or nearly absolute) "journalists' privilege" to protect the identity of anonymous sources.

The Plame case illustrates why. Outing an undercover American agent is a crime that consists entirely of a conversation between the criminal and someone else, often a journalist. If journalists have the right (and, many believe, the duty) not to supply evidence, the crime cannot be punished, and might as well not be a crime. In effect, supporters of journalists' privilege are saying that there is a public interest in protecting the secret sources of journalists but no public interest in protecting the secret sources of the CIA.

Cooper and Miller possess the key to their own freedom, but using it now would require a terrible backing-down under circumstances of maximum publicity. Anyway, they promised anonymity with little expectation that the law would turn against them, and may understandably feel that honor requires them to keep that promise, however ill-advised.

But others also have the key for Cooper and Miller, and could use it far more easily. Start with the leaker, who could simply come forward. It appears that technicalities of the law in question make prosecution difficult and unlikely. Is he or she going to stand by while Cooper and Miller go to jail to protect him/her?

The prosecutor, Patrick J. Fitzgerald, has made his point. He could now abandon his Ahab-like quest for a name he probably already knows. President Bush, if he wanted, could put the kibosh on what has become the kind of endless legal nightmare he is always complaining about. If he, or the CIA, were to say this thing has lost whatever purpose it once had, that would probably do the trick.

Then there's Novak. He knows who leaked to him. Is he really going to let these two colleagues take the fall?

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