The American Spectator

Jed wrote: “But a clear and limited federal privilege law protecting reporters and sources is now a must. Or we risk giving up the openness of government that is one of the foundation stones of our freedom.”

Jed, you have infinitely more legal background than I do, but would this not already be covered by the 1st amendment? I’ve heard a lot of liberals arguing for such a law, but there’s already a contradiction in terms — “a clear and limited federal privilege law” would probably be like our other clear and limited laws. Given media behavior in war zones, I can imagine situations where they will claim it’s perfectly okay to report deployment positions. But we needn’t go so far as security threats — I’m thinking of the way extortion and blackmail will come to a head in this regard, either through corporate whistleblowing or sexual harassment lawsuits. The accused, in these circumstances, should know the identity of their accuser.

But Olson’s article actually circles around this point: It’s not that journalists are inured to subpoenas, it’s that the prosecutor is indicting Libby on shaky ground. Criminal intent hasn’t been proven, and indeed, is hardly even touched:

If special prosecutors can be empowered to investigate allegations of conduct that isn’t first established to be criminal, and to interrogate witnesses — especially reporters — about memories of distant conversations with sources regarding conduct that isn’t plainly criminal, there is no politically motivated allegation that can’t be turned into a criminal cover-up.

In short, Judith Miller does not need protection; Fitzgerald needs restraint.