When it comes to the serious game of determining when a reporter must reveal his or her confidential sources under federal law, the Bush administration wants to continue to be both a player and the umpire. You don't need to talk to Judith Miller, the New York Times reporter jailed as a result of this perversion of impartiality, to help you decide whether that's the way you want your justice system to work.
In strident, sky-is-falling tones, the Justice Department this week urged an increasingly-concerned Congress to stay out of the one-sided fight between prosecutors and the press over "leaked" information that may be relevant to a criminal investigation. Trust us to be fair to journalists, government lawyers told Congress with a presumably straight face, even as Miller does time in the pokey for a story she never published. If federal officials were eligible for Pulitzer Prizes in Chutzpah, surely Deputy Attorney General James Comey, the author of an "issues and implications" memo to the Senate Judiciary Committee, would be a front-runner.
The Senate and the House now are considering a "shield" law that would bring federal rules into line with similar laws in 31 states and the District of Columbia. The federal legislation would give journalists more protection — but not complete immunity — from the sorts of dismaying choices that Miller and fellow journalist Matt Cooper of Time Magazine faced a few weeks ago during the investigation into the public disclosure of former CIA agent Valerie Plame's identity. If passed, the federal shield law would significantly limit the circumstances in which prosecutors could compel testimony from reporters; testimony that by definition is seeped in First Amendment import.