That is, of course, the essential argument of todayÂ’s whining, self-serving editorial over the failure of the Supreme Court to quash a subpoena of phone records in a probe of yet another nation security leak that aided terrorists who seek to destroy the United States.

A journalistÂ’s ability to protect the identity of confidential sources has been further eroded by the Supreme CourtÂ’s refusal this week to stop a prosecutor from reviewing the telephone records of two New York Times reporters. This is the latest legal blow to the diminishing right of journalists to shield informants who often provide information of great interest and importance but who might be punished if their identities were known.

Yeah, that’s right – folks who engage in criminal leaking of juicy information that the NY Times wants to publish on Page One because it helps the enemies of America. That’s right – the NY Times argues that journalists ought to have the right to obstruct justice.

The case arose from a Chicago grand jury investigation into who told the two reporters, Judith Miller and Philip Shenon, about actions the government planned to take against two Islamic charities in late 2001. The government contends that the reporters, in performing the normal journalistic practice of calling the charities for comment, effectively tipped them off to impending raids and asset seizures, undermining the effort.

Yes, it is true that the reporters may not have done anything criminal, but it would certainly appear that their sources did. That is why the information on the sources is necessary – it is essential to punishing criminal wrong-doing by the sources.

Rather than drag the reporters into court, where they could have protected their sources by refusing to testify, the prosecutor subpoenaed their phone records for 11 days in 2001. A trial court prohibited the government from obtaining the records from the phone companies, but a divided appeals court reversed that decision. Now the Supreme Court, in refusing to intervene, has effectively allowed the prosecutor to search through the records in hopes he can pinpoint the source of the leak.

Indeed, precisely because the reporters would have obstructed justice and jailed for contempt it is necessary for the prosecutors to obtain the phone records. If the reporters would recognize that they are subject to precisely the same laws that apply to the rest of Americans, such a subpoena would not be necessary. Bu reporters seem to believe that they are different, endowed by rights above those of ordinary Americans, and so the subpoena is the only way to get the records. The entire thing could be settled by an offer to reveal the sources to the investigators in the case – but the NY Times views itself and its employees as more important than the criminal justice system.

This is a bad outcome for the press and for the public. The phone records reveal the identities of lots of sources having nothing to do with the leaks. The appeals courtÂ’s disingenuous suggestion that The Times might redact irrelevant records would simply have helped point to possible leakers.

Again, that is the choice of the New York Times and its employees – revealing the sources directly would avoid this undesirable outcome, and sustain the rule of law over the rule of the media.

The public will be ill served if this case reduces the willingness of officials to reveal important but sensitive information. The privilege granted to journalists to protect their sources needs to be bolstered with a strong federal shield law that would preserve the public interest in newsgathering and dissemination of information.

Actually, the public will be well-served if the case reduces the willingness of unscrupulous officials to reveal important sensitive information that undermine the Crusade Against Jihadi Terrorism and other national security matters. There should be no special privileges granted journalists, no shield laws and no right to obstruct justice. AmericaÂ’s security depends upon it.

Posted by: Greg at 10:58 AM | No Comments | Add Comment
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