HOW HE SEES IT Threat to jail reporters over the top

By RICHARD SCHWARTZ
NEW YORK DAILY NEWS
If not for anonymous sources, there wouldn't be a newspaper printed in this country -- at least not one worth reading. Off-the-record interviews with confidential sources would be impossible. And the black box known as government would grow ever more opaque.
Bash journalists as you wish, but without them most of the corruption, sloth and ineptitude in our public institutions would never see daylight. And without being able to safeguard their confidential sources -- a practice traditionally protected by the First Amendment -- journalists would rarely be able to get their fingers around the facts.
"Watergate is the prime example where we needed confidential sources," said journalist Carl Bernstein of "All the President's Men" fame. "We made agreements of confidentiality with our sources back then that we honor to this day."
But now that vital confidentiality is being put at risk unnecessarily as two top national journalists face jail in a legal case that has as many holes as a city street after a snowstorm.
Rewind to July 2003 when columnist Robert Novak revealed the name of undercover CIA operative Valerie Plame, the wife of former Ambassador Joseph Wilson, who was then blasting the Bush administration for making bogus claims that Saddam Hussein had obtained uranium from Niger. Novak attributed the information to two senior Bush officials.
Daily fare
In government, of course, leaks are daily fare. But this one seemed different because it's a felony to reveal a covert federal agent's identity, according to a 1982 statute. The law, however, sets high standards and is rarely invoked. For instance: the leaker must know the person being exposed is a covert agent; the leaker must know the government is actively trying to conceal the agent's relationship to the United States and the covert agent must have served abroad in the last five years.
"According to these standards, the Novak case is more than questionable," said Victoria Toensing, who was the top Senate lawyer involved in drafting the 1982 law. "Every fact I know tells me the CIA did not take sufficient steps to hide Plame's identity. There is a huge question over whether the law was even broken in this case."
That's why it's a sin for Judith Miller of The New York Times and Matthew Cooper of Time magazine -- neither of whom ever identified Plame, although they apparently got the same leak as Novak -- to face the prospect of jail.
They followed the creed that, whether hero or snake, a source gets protected. Their reward? A judge threatens them with up to 18 months in jail. That ruling was just upheld on appeal. Their last chance will be in the Supreme Court, which must reverse this insidious ruling.
"If this were a murder, I'd say Miller should go to jail for withholding evidence," said Toensing. "In this case, we're far from sure a crime was committed. We ought to figure that out first."
The real crime, however, is weakening the institution of journalism. Subvert the fundamental faith in a reporter's confidentiality and our window into the black box called government shrinks.
X Richard Schwartz is a columnist for the New York Daily News. Distributed by Knight Ridder/Tribune.