Looking for light in a dismal affair

July 11, 2005

Norman Pearlstine, editorial chief of Time Inc., had a simple answer as to why he was bowing to a grand jury’s demand that a Time magazine reporter identify sources who spoke to him in confidence: “We are not above the law.”

That was a curious assertion to hear right before July Fourth; if the Founding Fathers agreed with Pearlstine we’d still be British subjects. Worse, his explanation reduced the vexing problems posed by the sleazy Novak-Plame affair to a straightforward matter of obeying “the law,” and it isn’t that simple.

Now the standoff that began when columnist Robert Novak exposed a CIA agent whose husband had embarrassed the White House has humbled one major news organization and landed a reporter from another, Judith Miller of the New York Times, in jail for refusing to identify her sources. Where should we look for rights and wrongs in this dismal tale?

This isn’t easy. But amid all the ethically dubious moves in this two-year-long affair, defying a distempered prosecutor and standing by a promise seems commendable for its clarity, even if the promise conceals the perpetrators of a political hit.

It all began badly, with Novak’s shabby piece of near-journalism in July 2003. A retired U.S. ambassador, Joseph Wilson, had wondered in a New York Times column why President Bush kept claiming that Iraq had been shopping for weapons-grade uranium in Africa, even though Wilson had investigated that rumor for the CIA and determined it wasn’t so.

Novak promptly weighed in with a piece characterizing Wilson as a Democratic fifth columnist and suggesting that he had gotten the unpaid CIA mission thanks to his wife, Valerie Plame, whom unnamed administration officials had told Novak was a CIA operative.

It was confidential source journalism at its worst. Novak never did any real reporting to determine whether Plame had actually influenced Wilson’s selection – as the CIA denied — let alone whether Wilson was dispatched, as Novak hints, as part of an agency effort to undermine the administration war push. Novak’s mention of Plame was little more than a smear, an insinuation of nepotism.

Days later Plame figured again peripherally in the Time story co-authored by Matthew Cooper, a well-reported profile of the White House effort to slime Wilson. Cooper too outed Plame, and he too got her name from confidential sources.

So because it can be illegal to identify U.S. spies, and because Bush foes wanted to shame the White House by associating the leak with administration hardball, it is the moral status of confidentiality pledges that has emerged as the signature issue of the affair. How readily should a journalist pledge secrecy? How far must a journalist go in keeping a promise? Should it withstand a court order? Does having an independent press require a zone of autonomy in which source protection has real legal standing?

Pearlstine did not address those questions, which are big ones. Confidentiality promises are morally complex things, requiring conflicting loyalties and duties to the public and to informants to be balanced. Undoubtedly they are made too often; undoubtedly they are indispensable to unearthing information of public importance in vast areas of politics and business. They are not trivial.

The notion that these pledges must automatically yield to “the law” is ridiculous. Courts are routinely wrong; rulings are routinely modified, overturned. Grand juries may foolishly ratify ambitious prosecutors, who in turn may be backed by short-sighted judges.

The European Court of Human Rights ruled in a 1996 British case that only “an overriding requirement in the public interest” could justify forcing a journalist to burn a confidential informant. “Protection of journalistic sources is one of the basic conditions for press freedom,” the court found.

The remedy for the wrong that was done in the Novak-Plame affair isn’t to lock up reporters or turn them into stool pigeons. The first solution is to put political pressure on Bush himself to demand that the leakers come clean so he can fire them. Legality aside, exposing a U.S. spy to settle a political score is intolerable as public policy. The leakers aren’t whistleblowers; they are presidential loyalists.

The second solution is to make the identity of the sources a matter of legitimate journalistic inquiry: The leakers took advantage of an honorable practice for dishonorable ends. Other reporters should be all over this one because, after all, it’s a great story.

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