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More Fun With Wiretaps

Michelle Malkin, still aglow from her recent capital punishment endorphins-and-Aste Spumante moment, is now one of many in the up with savagery crowd calling for the NYT's James Risen and Eric Lichtblau to be waterboarded until they cough up their NSA wiretap sources.

She quotes:

Those who have demanded severe punishment for whoever it was who told reporters that Valerie Plame worked at the CIA have been remarkably forgiving about who leaked the existence of the NSA intercept program, which - like the earlier leak of secret CIA prisons for al-Qaeda bigwigs and unlike the Plame kerfuffle - has done serious harm to our national security.

But fortunately, by clapping New York Times reporter Judith Miller in irons until she talked, overzealous special prosecutor Patrick Fitzgerald has set a valuable precedent.

That is just one astonishing bit of misinformation. We realize that doing any actual reading that doesn't involve porn of the Islamofascist barbarism variety can be bothersome and far be it from us to get in the way of a good philippic, but fill up column inches we must so let us dust off crusty old Judge Tatel once again.

In his concurrence to the decision to deny Miller and Cooper's motion to quash the Fitzgerald's subpoena, Judge Tatel was quite clear about the standards that must be met in order to force a journalist to reveal their sources. Basically the court looked to balance the value or "news worthiness" of the information released to the public with the damage potentially done to national security. He writes (PDF):

The leak of Plame's apparent employment, moreover, had marginal news value. To be sure, insofar as Plame's CIA relationship may have helped explain her husband's selection for the Niger trip, that information could bear on her husband's credibility, and thus contribute to public debate over the president's "sixteen words." Compared to the damage of undermining covert intelligence-gathering, however, this slight news value cannot, in my view, justify privileging the leaker's identity.

"Slight news value" -- his words, not mine. Compare this to the "news value" of the President engaging in illegal activity to spy on American citizens in violation of the Constitution. And I hate to be spiny but I really must wonder at how exactly this damaged national security. Were the jihadists somehow a bit less fiendishly clever than we take them for and quite aghast to learn the NSA was spying on them?

We picture a cave somewhere in Pakistan. Osama picks rat meat off a stick when countless number twos rush in screaming "Good God man, no warrants! Shut it all down!"

More critically, Tatel goes on to differentiate between a journalistic source that deserves protection under the law and one that does not based on the benefit derived by the public in protecting them. In his view, Cooper's "source" did not meet the criteria for protection:

[Cooper's] story revealed a suspicious confluence of leaks, contributing to the outcry that led to this investigation. Yet the article had that effect precisely because the leaked information -- Plame's covert status -- lacked significant news value. In essence, seeking protection for sources whose nefariousness he himself exposed, Cooper asks us to protect criminal leaks so that he can write about the crime. The greater public interest lies in preventing the leak to begin with. Had Cooper based his report on leaks about the leaks -- say, from a whistleblower who revealed the plot against Wilson -- the situation would be different. Because in that case the source would not have revealed the name of a covert agent, but instead revealed the fact that others had done so, the balance of news value and harm would shift in favor of protecting the whistleblower. Yet it appears Cooper relied on the Plame leaks themselves, drawing the inference of sinister motive on his own. Accordingly, his story itself makes the case for punishing the leakers. While requiring Cooper to testify may discourage future leaks, discouraging leaks of this kind is precisely what the public interest requires. (my emphasis)

So had the leaker been someone who worked for Rove who was jeopardizing their employment by exposing criminal activity, Judge Tatel says they would have been viewed as a whistleblower whose actions the public has an interest in protecting. Instead it was the very people who were doing the leaking who were committing the crime and as such they did not merit it.

In placing themselves at risk to expose government misdeeds, whoever leaked the NSA wiretap information qualifies as a "whistleblower" under this definition in a way that Rove, Libby et. al. explicitly do not.

I have no doubt if George Bush wants an investigation into this matter he will get one, but his failure to satisfy Michelle Malkin's blood lust so far probably has less to do with a tendency to coddle the "liberal media elite" and more to do with the fact that it would only extend this drama into the courts in a way that would not play well for the Administration.

posted by Jane Hamsher @ 12/27/2005 06:58:00 PM