DAN K. THOMASSON Another leak probe threatens free press

WASHINGTON -- The last thing this country needs is another major leak investigation, this one into who blew the whistle on warrantless domestic wiretaps, with the prospect of another parade of journalists being hauled before the bar to reveal their sources or face jail time.
In the first place, it might be difficult to nail any one person with the disclosure because there seems to be a number of government officials and intelligence sources who were aware and concerned that the National Security Agency had expanded its eavesdropping on the domestic front following the September 2001 terrorist attacks. In fact, it now looks as though the NSA did so without presidential authorization, which came later. House Democratic leader Nancy Pelosi of California raised questions about NSA activities around that time.
In the second place, if the First Amendment has any meaning left when it comes to press freedom, there should be an instant declaration to that effect from the courts, which, of course, is certainly wishful thinking given recent rulings in these cases, the most prominent being the leaks that led to the outing of a CIA operative. That incident saw one reporter held in contempt of court and jailed for protecting her sources and several others threatened with incarceration unless they squealed on theirs. Little or no prospect of solace was forthcoming from the last refuge for constitutional freedoms, the Supreme Court.
Uneven pursuit
The result is the highly publicized prosecution of a now-former White House aide, Scooter Libby, on allegations he tried to obstruct the investigation into how the leak took place. Other reporters never named had similar information that didn't come from Libby, casting doubt on the entire prosecutorial process.
So now already there are demands for the naming of another special counsel to find out who leaked the fact that the NSA was spying on Americans without court approval. Swell. Let's have another single-minded, overzealous defender of public outrage take his shot at the press.
President Bush was unpersuasive in his effort to stop publication of the story, held for a year out of national-security concerns. He was furious. One wonders whether his anger at the press is because he got caught in a highly questionable activity and is interested not so much in finding out who leaked the information, but in punishing the newspaper that embarrassed him by printing it. There are those who suggest that Bush himself should be investigated for having authorized the bypassing of statutory judicial restrictions on the electronic surveillance of domestic conversations, even those made to overseas locations.
War power debate
There clearly is room for debate on the president's "wartime" authority and whether during a time of national emergency he can arbitrarily suspend certain laws designed to protect American civil liberties. That debate can be expected to heat up in earnest as the year progresses. Certainly, other presidents have done so, including Abraham Lincoln, who suspended habeas corpus during the Civil War. President Richard Nixon wanted to during the violent anti-Vietnam protests, but was deterred from doing so by FBI Director J. Edgar Hoover. Nixon also failed in his attempt to halt publication of the so-called Pentagon Papers when the Supreme Court ruled against prior restraint.
It would be difficult to find a time more fraught with official animosity for the press, including the Watergate era, when the White House blamed reporters for anything that went wrong and even placed them on an enemies list. Some were the victims of wiretaps themselves. But the danger for a free press lies really in a seemingly unsympathetic judiciary, one that lacks an understanding of the necessary bond between sources and journalists in the oversight of public affairs. Without the assurance of protection from retribution, those public servants who, for whatever reason, have concerns about policies or actions by superiors will be reluctant to come forward.
Clearly, there are government operations that should be classified and those who reveal them subject to punishment. But what if there is substantial doubt about the legality of those activities? What if there is a law like the Foreign Intelligence Surveillance Act that sets up a process to make these actions legal and that law is ignored? What then? This time the courts have their own credibility to worry about. They also should be concerned about what is happening to the principle of a free and unfettered press.
X Dan K. Thomasson is former editor of the Scripps Howard News Service.