MIKE PESCA: From WNYC in New York, this is NPR's On the Media. Bob Garfield is away for one more week. I'm Mike Pesca.
BROOKE GLADSTONE: And I'm Brooke Gladstone. This week, Time Magazine held its nose and declared it would surrender documents with the name of a source to a grand jury investigating a possibly criminal leak. The leakers, who revealed the name of CIA agent Valeria Plame, were senior administration officials. We know that, because columnist Bob Novak said so when he outed Plame. We don't know for sure if Novak gave up his source to the grand jury, but we do know who didn't - New York Times reporter Judith Miller and Time Magazine reporter Matt Cooper. In an effort to protect their sources, they took their case all the way to the Supreme Court, which this week declined to hear it. That means Miller faces 18 months in jail. Cooper may be spared because of his magazine's eleventh hour capitulation.
LUCY DALGLISH: If Mr. Cooper from Time Magazine is forced to reveal a source, you could make an argument that Mr. Cooper's career as a reporter in this town could be over.
BROOKE GLADSTONE: That goes for any Washington reporter, said Lucy Dalglish, head of the Reporter's Committee for Freedom of the Press, who spoke to us in May of 2004.
LUCY DALGLISH: You have to remember that the media often operate on leaks, particularly when it comes to national security issues, and I think you could point to countless stories where great public good was done because information was leaked from government agencies. Journalists keep their ethical obligation not to reveal confidential sources. They value it just as much as doctors and lawyers and priests view their obligations to keep information confidential.
BROOKE GLADSTONE: Most states have laws that shield reporters from revealing sources in most legal proceedings, but the Plame investigation is a federal case, and there is no national shield law, though most journalists and even a few senators believe there should be. What's worse for Cooper and Miller, this is a criminal case, notoriously shield law-resistant. Adam Liptak is the New York Times legal reporter.
ADAM LIPTAK: Unfortunately for them, they are confronted with just about the worst imaginable facts. They are essentially eyewitnesses to the crime of someone disclosing the identity of a undercover CIA agent, or at least that's the prosecutor's theory.
BROOKE GLADSTONE: That's the theory. It's still not clear if the leakers actually broke the law. It is clear that by refusing to cooperate with investigators, Miller and Cooper did. Cooper spoke to us last December.
MATT COOOPER: It would be impossible for journalists be able to do interviews and, you know, constantly be reassessing, well, can I grant it here? Is this a civil privilege, a criminal case? It's just not the way journalism works.
BROOKE GLADSTONE: New York Times publisher Arthur Sulzberger said he was deeply disappointed by Times' decision to release the documents, but Time Inc. editor in chief Normal Pearlstein said, (quote) "It's more damaging to say we're above the law than it is to follow it." University of Chicago law professor Geoffrey Stone is a champion of first Amendment rights and ardent supporter of shield laws for journalists, so naturally he would side with - Pearlstein?
GEOFFREY STONE: I think Time has figured out that it's exhausted all of its legal remedies, and now, like any good citizen, has to abide by the rule of law.
BROOKE GLADSTONE: And by extension, the New York Times remains a bad citizen.
GEOFFREY STONE: Assuming they continue to take the view that they have a right higher than that of the American legal system, yes. I would say they would be behaving as a bad citizen.
BROOKE GLADSTONE: And you don't think that the American legal system sometimes is wrong and needs to be backed into a corner in order to get corrected?
GEOFFREY STONE: I think there are times when the American legal system is wrong. This is just not that case. This is a case where the New York Times made its best shot, and lost.
BROOKE GLADSTONE: Now, you suggested that Time Magazine and the New York Times were actually pursuing the wrong course to begin with.
GEOFFREY STONE: Exactly. The critical mistake, in my view, that the Times has made, and Time Magazine up till this point has made, is to mistake what is really a source privilege with what they would like to have as a reporter's privilege. When we talk about the attorney-client privilege or the doctor-patient privilege, or the reporter-source privilege, the reason for the privilege is not to protect the lawyer or the doctor or the reporter. It's to protect the person who's disclosing the information from the fear that if he makes that disclosure, it will later get him in trouble. And that's the entire reason for the privilege. The distinctive feature about this situation is that the individuals who made the disclosure were committing a criminal offense in doing so, and there's no public policy in protecting their identities. In the doctor-patient privilege, when a patient seeks advice from the doctor not to treat a medical ailment but in order to commit a fraud on an insurance company, the privilege does not apply. All I'm saying is the exact same thing should apply in the journalist-source situation. I believe there should be a very broad journalist-source privilege that should cover 99 percent of the situations. I believe in a much more aggressive privilege than even most people who want a privilege. But I don't believe it covers this particular situation.
BROOKE GLADSTONE: I understand the distinction now between a source who is divulging information for criminal reasons and a source who is not, but do you think the vast number of would be whistleblowers out there will understand this fine distinction when they see an injustice occurring? He might back off because he doesn't think that a promise of confidentiality will ever hold.
GEOFFREY STONE: Yes, you're right. There will be some people who will be chilled who are not committing crimes, because they're not sure. That's absolutely true. On the other hand, there's a legitimate government interest in preventing crimes from being committed, and in this instance, these individuals who were in fact committing crimes are trying to use the press privilege to get away with it.
BROOKE GLADSTONE: So where does that leave us? The Plame case, a poor test for reporters' privilege, is a fine way to gauge the gathering storm. Just this week, a federal appeals court ordered four reporters to answer questions about their confidential sources on stories about former nuclear scientist Wen Ho Lee. Speaking of confidential sources, according to Bob Woodward's new book, Deep Throat's identity could have been known long ago. In 1976, Mark Felt was testifying in a grand jury probe not related to Watergate, when he was asked if he had been Deep Throat. Felt denied it. Former Justice Department official Stanley Pottinger reminded him that he was under oath and offered to withdraw the question, since it was outside the bounds of the investigation. Flushed, Felt quickly took the offer. Pottinger knew then who Felt was but never revealed it, because, Woodward wrote, "he did not think it was appropriate to unmask a reporter's confidential source." The current climate is not so conducive to Deep Throats who stay in the shadows as reporters hold the powerful to account. Daniel Ellsbergs maybe. He was willing to go to jail. But Deep Throats? Not likely. Not now. [MUSIC]