This story begins with an op-ed article in The New York Times by former Ambassdor Joseph C. Wilson, that President Bush exaggerated evidence of Iraqi arms programs. Syndicated columnist Robert Novak followed with an article in The Washington Post that identified Wilson's wife, Valerie Plame, as a CIA officer working to detect weapons of mass destruction. Mr. Novak attributed this information to "two senior administration officials."
It is a federal crime to identify a covert agent, but only if the identification is made by someone who has, or has had, authorized access to classified information. Novak, as a journalist, has had access for years, but it has not been authorized. If his sources didn't have authorized access, there may have been no crime.
In any case, the White House was much upset. One suspects this was not so much over the exposure of Ms. Plame as it was over her husband's criticism of Mr. Bush's Iraqi policy. After unfruitful efforts at an internal investigation, a special prosecutor was appointed to find Novak's "two senior administration officials." The prosecutor impaneled a grand jury. Grand jury proceedings are secret, and Novak refuses to say if he has appeared or what, if anything, he told the jury or the special prosecutor.
Other reporters picked up the story - among them Judith Miller of The New York Times and Matthew Cooper of Time magazine. Both of them were subpoenaed to testify before the grand jury. Both refused to do so and were held in contempt of court. That finding has been upheld by a three-judge panel of the US Court of Appeals for the District of Columbia circuit. Unless this is overruled on appeal, they face jail sentences of 18 months or the life of the grand jury, whichever is shorter.
Ms. Miller's case is particularly worrisome in that she did not write anything, although she talked to people in the government about the story. Even more peculiar, the Appeals Court said the special prosecutor knows the person with whom she talked. So why does he not question that person directly?
Journalists have long insisted on protecting the confidentiality of their sources. They argue, rightly, that this is essential to establish a relationship of trust; otherwise, some important sources wouldn't tell them anything and reporting would be inhibited.
Even more disturbing, the special prosecutor submitted secret evidence to the appeals court, and neither Ms. Miller, Mr. Cooper, nor their attorneys were allowed to see it. What has happened to the Sixth Amendment, which gives those accused the right to be confronted with the witnesses against them? Miller succinctly described the situation: "I risk going to jail for a story I didn't write, for reasons a court won't explain."
Court decisions have held that the First Amendment's protection of freedom of the press does not extend to the protection of sources, because criminality is frequently involved. The identification of Plame is possibly an example. Other examples are more compelling. A reporter for The Washington Post once won a Pulitzer prize for a story she made up concerning drug addiction in children. The Post returned the Pulitzer, fired the reporter, and instituted a rule that reporters had to reveal their sources to an editor. Many anonymous sources help the media bring scandals to light. This is a public service. Only last week, in a different case, a federal court ruled that the government was not entitled to reporters' telephone logs.
Freedom of the press is not a special privilege bestowed on the media. It is, rather, based on the public's need to know what the government is doing. Otherwise, people cannot make reasonable judgments about their government's policies, competence, or honesty; and democracy will not work.
There is a built-in tension in the relationship between journalists and governments. To the extent that the government has legitimate secrets (and it does, though not so many as it says), it is the government's responsibility to protect them. Leaks come from the government; journalists simply report them. To complain about this is like shooting the messenger who brings bad news.
In the Plame case, it isn't entirely implausible to wonder if the White House itself was the source of the leak that upset it so much - or if, perhaps, the leaking was done under instruction from the White House. Is the mission of the special prosecutor, perhaps unknown to the prosecutor himself, really to find a scapegoat?
• Pat M. Holt is former chief of staff of the Senate Foreign Relations Committee. He wrote the book 'Secret Intelligence and Public Policy: A Dilemma of Democracy.'