Federal privilege for reporters is crucial legislation

WASHINGTON — Like many Americans, I am perplexed by the federal investigation into the alleged leak of classified information that exposed Valerie Plame, the wife of Joseph C. Wilson IV, a former ambassador, as a Central Intelligence Agency officer.

So far the special prosecutor, Patrick J. Fitzgerald, has achieved one notable result: putting a New York Times reporter, Judith Miller, in jail for refusing to break her promise of confidentiality to her sources in response to a grand jury subpoena. The incarceration of Miller is all the more baffling because she has never written a word about the CIA flap.

If state rather than federal authorities were conducting this investigation, Miller most likely would not be in jail. Today 49 states and the District of Columbia recognize a "reporter's privilege," either by statute or through state judicial decisions, which allows journalists to report information and protect confidential sources without fear of imprisonment.

Unfortunately, at the federal level the legal landscape is much less clear. In 1972, the Supreme Court held that reporters do not have an absolute privilege to protect their sources from prosecutors. And various federal appeals courts have developed inconsistent standards on how and when such a privilege may apply.

Congress can help rectify this situation by passing a bill introduced by Sen. Richard G. Lugar and Rep. Mike Pence, both Indiana Republicans, that sets clear standards the federal government must meet before it issues a subpoena to a reporter in a criminal or civil case.

For example, in a criminal investigation, a reporter would be required to turn over confidential information only if a court determines that there are reasonable grounds to believe a crime has been committed, that the requested information is essential to the investigation and that it could not be obtained from nonmedia sources.

This is hardly a free pass for journalists; importantly, the bill specifically authorizes the forced disclosure of a source's identity if doing so is necessary to prevent imminent and actual harm to national security.

As someone with a long record of government service, I must admit that I did not always appreciate the inquisitive nature of the press. But I do understand that the purpose of a reporter's privilege is not to somehow elevate journalists above other segments of society. Instead, it is designed to help guarantee that the public continues to be well-informed.